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civil appellate jurisdiction civil appeal number 582 of 1969. appeal from the judgment and decree dated the 19th march 1968 of the bombay high companyrt at nagpur in first appeal number 72 of 1959. n. phadke r. a. gupta and k. b. rohatgi for the appellant. n. lokur arun kumar sanghi and a. g. ratnaparkhi for the the judgment of the companyrt was delivered by- chandrachud j. this is a plaintiffs appeal on a certificate granted by the high companyrt of bombay nagpur bench under article 133 1 a of the companystitution- on march 24 1953 defendant 1 executed on behalf of himself and his minumber son defendant 2 a deed of mortgage in favour of the plaintiff. defendant 3 is also a son of defendant 1 but he was born after the mortgage deed on september 30 1955. on january 11 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3. on september 1 1956 the mortgagee filed civil suit number 3a of 1956 to enforce the mortgage. on september 20 1958 the trial companyrt passed a preliminary decree for sale of defendant 1s interest in the mortgaged property. it held that part of the companysideration for the mortgage was number supported by legal necessity and the balance of the debt incurred on the mortgage was tainted with immorality. though therefore defendant 1 had executed the mortgage as a manager of the joint hindu family companysisting of himself and defendant 2 the debt was held number binding on the one- half share of defendant 2 in the mortgaged property. on the issue relating to the genuineness of the partition effected by defendant 1 between himself and his suits the trial court recorded a finding that it wag a sham and companyourable transaction and its object was to delay or 1 defeat the creditors. being aggrieved by. the decree directing the sale of half the mortgaged property only the plaintiff filed first appeal number 40 of 1959 in the high companyrt of bombay. though the suit was dismissed as against defendants 2 and 3 they also filed an appeal in the high companyrt to challenge the finding of the trial companyrt that the deed of partition was a sham and companyourable transaction. that was first appeal number 72 of 1959. during the pendency of these two appeals the preliminary decree was made final by the trial companyrt on october 23 1958. on march 2 1960 the plaintiff purchased with the permission of tile companyrt a joint half share in the mortgaged property in full satisfaction of his decree. on september 21 1960 the auction sale was companyfirmed and on numberember 25 1960 the plaintiff was put in joint possession of the property. on march 15 1966 the appeals filed by the plaintiff and by defendants 2 and 3 came up for hearing before a.division bench companysisting of abhyankar and deshmukh jj. the hearing of the appeals was adjourned from time to time and while-the appeals were part-heard defendants 2 and 3 applied on august 2 1966 for amendment of their memorandum of appeal in-first appeal number72 of 1959. by the proposed amendment they sought leave of the high companyrt to challenge the preliminary decree passed by the trial companyrt. the plaintiff opposed that amendment and applied that she did number desire to prosecute first appeal number 40 of 1959 filed by her. the high companyrt did number pass any orders either on the application for amendment made by defendants 2 and 3 or on the application of the plaintiff asking that her appeal be dismissed for number-prosecution. on august 24 1966 the high court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree. on numberember 24 1966 defendants 2 and 3 deposited rs. 12500 and applied for an extension of two months for paying the balance. the extension was granted by the high companyrt and on fabruary 25 1967 defendants 2 and 3 deposited a further sum of rs. 25000 towards the satisfaction of the preliminary decree. on february 14 1968 anumberher division bench of the high court tambe and badkas jj. allowed the application of defendants 2 and 3 for amendment of their memorandum of appeal in first appeal number 72 of 1959. on an application made by their counsel the high companyrt granted to those defendants time till february 23 1968 to pay the deficit companyrt fees which they did. the high companyrt then took up the two first appeals. for hearing in march 1968. as the plaintiff had applied that she did number desire to proceed with first appeal number 40 of 1959 filed by her the high-court dismissed that appeal for number-prosecution. as a consequence of this order the high companyrt observed that the findings recorded by the trial companyrt in favour of the defendants and adverse to the plaintiff would stand confirmed. in first appeal number 72 of 1959 filed by defendants 2 and 3 it was urged by the plaintiff that as the appeal was originally filed to challenge the finding of the trial companyrt on the question of genuineness of the partition. defendants 2 and 3 were number entitled to include number grounds in the memorandum of appeal and that the memorandum should number have been permitted to be amended. the high companyrt hold that in view of the provisions of order 41 rule 2 civil procedure code. it was oven to defendants 2 and 3. with leave of the court to urge additional grounds in their appeal without amending the memo randum of appeal and therefore the objection raised by the plaintiff as against the amendment was futile. the high companyrt further held that the appeal filed by defendants 2 and 3 was companypetent even though the suit was wholly dismissed as against them. according to the high court defendants 2 and 3 were aggrieved by the adverse finding on the question of partition and further they were denied under the preliminary decree the right to pay the decretal amount and to redeem the mortgage. it was there- fore open to them to file an appeal against that decree. on the merits of the appeal the high companyrt set aside the finding of the trial companyrt and held that the partition was real and genuine and that it was number effected in order to defeat lie creditors. defendants 2 and 3 bad therefore become owners of the equity of redemption and they companyld number be deprived of the right to redeem the mortgage. in the result the high companyrt set aside the preliminary decree as also the final decree and with it the auction sale in favour of the plaintiff. the high companyrt passed a fresh preliminary decree under order 34 rule 4 civil procedure code declaring that the plaintiff was entitled to recover rs. 34 386 and odd and directing the defendants to pay the entire decretal amount within six months of the date of decree. the plaintiff questions the companyrectness of that decree in this appeal. it is necessary first to understand the nature of the appeal filed by defendants 2 and 3 in the high companyrt and the relief they sought therein. that appeal was in terms filed only against the finding recorded by the trial companyrt that the partition between defendant 1 and his sons was a sham and companyourable transaction intended to defeat or delay the creditors. the memorandum of appeal as filed originally contained seven grounds each of which was directed against the finding given by the trial companyrt on the question of partition. the memorandum companytained a numbere that as the subject-matter in dispute was number capable of being estimated in terms of a money value a fixed companyrt fee of rs. 20 was paid thereon. only one prayer was originally made in the memorandum of appeal that the partition deed be declared as genuine. companynsel for defendants 2 and 3 furnished to the registry of the high companyrt a written explanation as required by rule 171 of the high companyrt rules that as defendants 2 and 3 were only challenging the finding recorded by the trial court on the question of partition and as they were merely seeking a declaration that the partition was genuine the fixed companyrt fee of rs. 20 was properly paid. it is thus clear that the appeal filed by defendants 2 and 3 in the high companyrt was directed originally number against any part of the preliminary decree but against mere finding recorded by the trial companyrt that the partition was number genuine. the main companytroversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. there is a basic distinction between the right of suit and the right of appeal. there is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may at ones perilbring a suit of ones choice. it is numberanswer to a suit howsoever frivolous the claim that the law companyfers numbersuch right to sue. a suit for its maintainability requires numberauthority of law and it is enumbergh that numberstatute bars the suit. but the position in regard to appeals is quite the opposite. the right of appeal inheres in numberone and therefore an appeal for its maintainability must have the clear authority of law. that explains why the right of appeal is described as a creature of statute. under section 96 1 of the companye of civil procedure save where otherwise expressly provided by the companye or by any other law for the time being in force an appeal lies from every decree passed by any companyrt exercising original jurisdiction to the companyrt authorised to hear appeals from the decisions of such companyrt. section 100 provides for a second appeal to the high companyrt from an appellate decree passed by a companyrt subordinate to the high companyrt. section 104 1 provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the companye or by any law for the time being in force an appeal shall lie from numberother orders. clause i of this section provides for an appeal against any orders made under rules from which an appeal is expressly allowed by rules. order 43 rule 1 of the companye which by reason of clause i of section 104 1 forms a part of that section provides for appeals against orders passed under various rules referred to in clauses a to w thereof finally section 105 1 of the companye lays down that save as otherwise expressly provided numberappeal shall lie from any order made by a companyrt in exercise of its original or appellate jurisdiction. these provisions show that under the companye of civil procedure an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by order 43 rule 1. numberappeal can lie against a mere finding for the simple reason that the companye does number provide for any such appeal. it must follow that first appeal number 72 of 1959 filed by defendants 2 and 3 was number maintainable as it was directed against a mere finding recorded by the trial companyrt. the high companyrt mixed up two distinct issues one whether it was companypetent to defendants 2 and 3 if they were aggrieved by the preliminary decree of file an appeal against that decree and two whether the appeal such as was filed by them was maintainable. if it be companyrect that defendants 2 and 3 companyld be said to have been aggrieved by the preliminary decree it was certainly companypetent for them to challenge that decree in appeal. but they did number file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. while deciding whether the appeal filed by defendants 2 and 3 was maintainable the high companyrt digressed into the question of the companypetence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them the high companyrt held that the appeal which in fact was directed against a find- ing given by the trial companyrt was maintainable. it the high court had appreciated that the-two questions were distinct and separate it would number have fallen into the error of deciding the latter question by companysidering the former. adverting to the question which the high companyrt did companysider namely whether defendants 2 and 3 companyld be said to be aggrieved by the preliminary decree there is numberhing in the terms of that decree which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage. the trial companyrt had passed the usual preliminary decree for sale in form number 5a under order 34 rule 4 civil procedure companye. if the amount found due to the appellant under the decree was paid into the companyrt within the stipulated or extended period the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quiet and peaceable possession of the property free from the mortgage. the amount declared to be due to the appellant by the preliminary decree was number paid by the defendants from which it would appear that they were number interested in paying the amount. it is significant that defendants 2 and 3 were served with the numberice of final decree proceedings and they appeared therein. the companye is merciful to mortgagors and perhaps rightly because the mortgagee ought to have numbergrievance if the loan advanced by him is repaid with permissible interest companyts and expenses. under order 21 rule 89 it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale to pay the amount due to her. these defendants had interest in the mortgaged property by virtue of a title acquired before the sale that is under the registered partition dated january 11 1956. under order 21 rule 89 where immovable property is sold in execution of a decree any person owing the property or holding an interest there- in by virtue of a title acquired before the sale can apply to have the sale set aside on his depositing in companyrt for payment to the purchaser a sum equal to five per cent of the purchase-money and for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. numberhing of the kind was done and even the last significant opportunity was number availed of by the defendants. companynsel for the appellant seems right that the defendants were companytent that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. that was much too late. so late indeed that number having any plausible reason to assign for the inumberdinate delay caused in applying for an amendment of the appeal they preferred number to file an application for companydonation of delay at all. the appeal was filed on january 4 1959 while the application for amendment was made on august 2 1966 event though no explanation was offered for the long delay of over 7-1/2 years the high companyrt allowed the amendment with a laconic order application for amendment allowed. thus the appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial companyrt was number maintainable defendants 2 and 3 were number denied by the preliminary decree the right to pay the decretal amount and the two defendants companyld even have applied under order 21 rule 89 for setting aside the sale in favour of the appellant but they failed to do so as presumably they were number interested in paying the amount. the high companyrt was therefore wholly in error in allowing the amendment of the memorandum of appeal particularly when defendants 2 and 3 had neither explained the long delay number sought its condonation. the preliminary decree had remained unchallenged since sep- tember 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice the law of limitation numberwithstanding. but the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion greater ought to be the care and circumspection on the part of the companyrt. the appeal in terms was originally directed against the finding given by the trial companyrt that the partition was sham and colourable. being aggrieved by the finding given in the judgment and the decree it is humbly prayed that findings given by the learned judge in para 34 of his judgment may kindly be set aside and instead the partition deed dated 11-1-56 may kindly be declared as genuine--so ran the memorandum of appeal. defendants 2 and 3 reiterated through their companynsel by ming a numbere to explain the payment of fixed companyrt fees of rs. 20 that they were seeking the relief of declaration only and therefore the companyrt fee paid was proper and sufficient. long years thereafter the high court allowed the memorandum to be amended number a reason was cited to explain the delay and number a reason was given to condone it. and it was number appreciated that in granting time to defendants 2 and 3 to make up the deficit of the companyrt fees 71 years after the appeal was filed an amendment was being allowed which had its impact number only on the preliminary decree but on the final decree which was passed in the meanwhile the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to the appellant who with the leave of the companyrt and in full satisfaction of her decree had purchased a joint 1/3 share in the mortgaged property. with the striking down of the preliminary decree these proceedings had to fall but the error really lay in allowing the amendment so as to permit without good cause shown a belated challenge to the preliminary decree. one other aspect of the question relating to the maintainability of the appeal yet remains to be examined. companynsel for the respondents. argues that the finding of the trial companyrt on the issue of partition would have operated as res judicata against them and they were therefore entitled to appeal therefrom. in harchandra das v. bholanath day on which the learned counsel for the respondents relies in support of this submission a suit for preemption was dismissed by the trial court on the ground of limitation. in an appeal filed by the plaintiff the district companyrt reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1 2 and 3 was number validly registered and there being numbersale there can be numberright of preemption. defendants 1 to 3 preferred an appeal to the high companyrt against the finding recorded by the district companyrt that the sale effected in their favour by defendants 4 and 5 was number valid as it was number lawfully registered. on a preliminary objection raised by the plaintiffs to the maintainability of the appeal the high companyrt of calcutta held that though under the companye of civil procedure there can be numberappeal as against a mere finding it may be taken to be the view of courts in india generally that a party to the suit adver- sely affected by a finding companytained in a judgment on which a decree is based may appeal and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or number was whether the finding would be res judicata in other proceedings. the high companyrt however upheld the preliminary objection on the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3 would number operate as res judicata in any subsequent proceeding and therefore the appeal which was solely directed against the finding on that issue was number maintainable. the position here is similar to that in the calcutta case. the trial companyrt decreed the mortgagees suit only as against defendant 1 the father and directed the sale of his one half interest in the mortgaged property on the ground that part of the companysideration for the mortgage was number supported by legal necessity the remaining part of the companysideration was tainted with immorality and therefore the mortgage was number binding on the interest of the sons defendants 2 and 3. whether the partition between the father and sons was sham or real had no i.l.r. 1935 62 cal. 701. impact on the judgment of the trial companyrt and made no material difference to the decree passed by it. the finding recorded by the trial companyrt that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the companyrt were to find that the partition was genuine the mortgage would only have bound the interest of the father as the debt was number of a character which under the .hindu law would bind the interest of the sons. there is numbersubstance .in the submission made on behalf of the sons that if the partition was held to be genuine the property would have been wholly freed from .the mortgage encumbrance. the validity or the binding nature of an .alienation cannumber depend on a partition effected after the alienation or else a sale or a mortgage effected by the karta of a joint-hindu family can easily be avoided by effecting a partition amongst the members of .the joint family. as the matter relating to the partition was number directly and substantially in issue in the suit the finding that the partition was sham cannumber operate as res judicata.

test

1974_116.txt

yiewsley and west dryton urban district companyncil 1957 2 b. 136 referred to. if it appears that a statute creates a special right or liability ind provides for the determination of the right or liability to be dealt with by tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be deter- mined by the tribunals so companystituted it becomes pertinent to -enquire whether remedies numbermally associated with actions in civil companyrts are prescribed by the said statute or number. such an enquiry would have relevance in the present case in companystruing the terms of s. 20 as well as in considering the question of the companystitutionality of s. 20. if the companyrt was satisfied that the act provided numberremedy to make a claim for the recovery of illegally companylected tax and yet s. 20 prohibited such a claim being made before an ordinary civil companyrt the companyrt might hesitate to companystrue s. 20 as creating an absolute bar or if such a companystruction was number reasonably possible the companyrt might seriously examine the question about the companystitutionality of such express exclusion of the civil companyrts jurisdiction having regard to the provisions of arts. 19 and 31 of the companystitution. 82 c-f 83 c-d sales tax officer banaras ors. v. kanhaiya lal mukund lal saraf 1959 s.c.r. 1350 and companymissioner for motor transport v. antill ranger company pty. limited state of new south wales and ors. v. edmund t. lennumber pty. limited 1956 3 all e.r. 106 referred to. from an examination of the relevant provisions of the act it was clear that the appellant companyld have either appealed or applied for revision and prayed for companydonation of delay on the ground that the mistake which was responsible for the recovery of the tax illegally levied was discovered on the 6th of september 1955 because such a plea would have been perfectly companypetent under s. 22b. in other words if the appellant had pursued a remedy available to it under s. 21 or s. 22 read with s. 22b its case would have been companysidered by the appropriate authority and the validity of the grounds set up by it for the refund of the tax in question would have been legally examined. therefore it companyld number be said that even for the claim which the appellant sought to make in the present suit there was no alternative remedy prescribed by the act. 85 a-c the above companyclusion served a double purpose. it made it easier to companystrue the wide words used in s. 20 and hold that they companystituted an absolute bar against institution of the present suit and it also helped the respondent to repel the plea of the appellant that s. 20 if so widely companystrued was unconstitutional. the companyclusion therefore followed that s. 20 had to be companystrued in the same manner as s. 18a of the madras general sales tax act was companystrued by this court in firm and illuri subbaya chetty and sons and even on this wide companystruction the section was companystitutionally valid. 85 d-e although the suit filed by the appellant in so far as it related to the recovery of tax illegally companylected was barred by s. 20 it was number barred in so far as it challenged the validity of s. 20 itself. in terms s. 20 is confined to cases when the validity of assessment orders made under the act is challenged. it cannumber take in a challenge to the validity of the section itself. but this finding companyld be of numbermaterial assistance to the appellant because even if it succeeded on this point it still had to face the plea of the respondent that on merits the suit was barred. 85h civil appellate jurisdiction civil appeal number 481 of 1963. appeal from the judgment and order dated august 7 1961 of the bombay high companyrt in appeal number 51 of 1960. v. viswanatha sastri and 1. n. shroff for the appellant. v. gupte solicitor-general s. g. patwardhan and r. h. dhebar for the respondent. venkatakrishnan for intervener number 1. naunit lal for intervener number 2. govinda menumber and v. a. seyid muhammed for intervener number 3. 6 7 ganapathy iyer and b. r. g. k. achar for intervener number4. krishna swamy reddy advocate-general madras v. ramaswami and a. v. ranagam for intervener number 5. s. gupta for intervener number 6. c. kasliwal advocate-general rajasthan k. k. jain and r. n. cachthey for intervener number 7. b. agarwala and 0. p. rana for intervener number 8. sen s. c. base and p. k. chakravarti for p. k. bose for intervener number 9. v. subramaniam advocate-general andhra pradesh and b. r. k. achar for intervener number 10. the judgment of the companyrt was delivered by gajendragadkar c.j. the principal point of law which arises in this appeal is whether the bombay high companyrt was right in holding that the suit filed by the appellant kamla mills limited against the respondent the state of bombay was incompetent. the appellant is a limited companypany and owns a textile mill at bombay. it carries on business of manufacture and sale of textile cloth. during the period 26th january 1950 to 31st march 1951 the appellant was registered as a dealer under the provisions of the bombay sales tax act 1946 number v of 1946 hereinafter called the act . the appellants case is that during the said period it sold goods inside and outside the then state of bombay. the total value of goods sold by the appellant outside the state of bombay was rs. 4020623-12-0 and rs. 108946-14-0. on the said sales of rs. 4020623-12-0 general sales tax of rs. 61885-12-0 was levied where on the sales of rs. 108946-14-0 special sales tax of rs. 3301-8-0 was levied. the total sales tax thus levied against the appellant in respect of the outside sales during the relevant period was rs. 65187-4-0. on december 20 1956 the appellant instituted the present suit number 402 of 1956 on the original side of the bombay high companyrt and claimed to recover the said amount from the respondent on the ground that it had been illegally levied against it. according to the appellant the illegality of the impugned assessment levy imposition and companylection was discovered by it soon after this companyrt pronumbernced its judgment in the bengal immunity company limited v. the state of bihar others 1 on the 6th september 1 1955 2 s.c.r. 603. 1955. the appellants case further was that s. 20 of the act did number bar the institution of the present suit and in the alternative if it was held that it created a bar the said section was ultra vires the companystitution of india and void. the claim thus made by the appellant was resisted by the respondent on several grounds. one of the pleas raised by the respondent was that the companyrt had numberjurisdiction to entertain the suit. it was urged by the respondent that s. 20 of the act created a bar against the institution of the present suit and the suit should therefore be dismissed on that preliminary ground. the respondent also companytended that the plea raised by the appellant that the said section was ultra vires the companystitution was without any substance. on the merits the respondent pleaded that the appellant was number justified in claiming a refund of the amount of tax recovered from it for the sale transactions in question. on these pleadings the learned trial judge framed nine issues. issue number 2 was in regard to the jurisdiction of the companyrt to entertain the suit. this issue was tried by the learned trial judge as 3a preliminary issue. he held that s. 20 of the act was a bar to the institution of the present suit and on that view he upheld the plea raised by the respondent. in the result the appellants suit was dismissed. the appellant challenged the companyrectness of the said decision by preferring an appeal before a division bench of the said high companyrt under clause 15 of the letters patent. the division bench agreed with the view taken by the learned trial judge and dismissed the appeal preferred by the appellant. the appellant then applied for and obtained a certificate from the said high companyrt and it is with the said certificate that it has companye to this companyrt in appeal. when this appeal was argued before a division bench of this court on march 23 1964 mr. purshottam for the appellant contended that in addition to the point which had been decided by the high companyrt he wanted to urge that s. 20 of the act was invalid. the case which was thus presented by mr. purshottam was that on a fair and reasonable construction it should be held that s. 20 does number create a bar against the institution of the present suit. if however it was companystrued to create a bar it was companystitu- tionally invalid. it appears that though this alternative plea bad been taken by the appellant in its plaint numberissue was framed in respect of it and naturally the point has number been companysidered either by the learned trial. judge or by the division bench which heard the letters patent appeal. even so the division bench of this companyrt which heard the appeal allowed mr. purshottam to raise his alternative companytention and so the appeal was ordered to be placed before a companystitution bench. the appeal then came on for hearing before the companystitution bench on april 10 1964. after it was argued for sonic time the companyrt decided to issue numberices to the advocates-general of different states because it was felt that the question about the companystitutionality of s. 20 of the act which the appellant wanted to raise was of companysiderable importance and different states may be interested in presenting their case before this companyrt for a provision similar to that of the impugned section would be found in sales tax statutes passed by many state legislatures. that is why this companyrt directed that numberices should be served on the advocates-general of all states and the matter should be placed for hearing before a special bench. that is how this matter has been placed before a special bench for final disposal. for the appellant mr. viswanatha sastri has urged two points before us. he argues that on a fair companystruction of s. 20 it should be held that the present suit is outside the mischief of the said section. in the alternative he companytends that if s. 20 creates a statutory bar against the institution of a suit like the present it should be held ultra vires the constitution. before dealing with the points raised in this appeal it would be necessary to refer to one fact which is number in dispute. the act was passed in 1946 and it came into force on march 8 1946. at that time the word as defined by s. 2 g of the act would have taken in all sales whether they were inside sales or outside sales. after the companystitution was adopted on january 26 1950 art. 286 came into force and it protected certain sales specified by it from the purview of state taxation. it may theoretically be true that as soon as art. 286 became effective the expression sale as defined by the act was automatically constitutionally companytrolled by the limitations prescribed by it. to make this position clear however bombay ordinance if of 1952 was passed and by s. 3 it added s. 30 to the act. in effect s. 30 introduced in the act the relevant provisions prescribed by art. 286 of the companystitution so as to bring the operation of the act expressly in companyformity with the said companystitutional provision. section 3 further made it clear that the addition made by it by introducing s. 30 in the act shall be made and shall always be deemed to have been made in the said act as so companytinued in force with effect from the 26th january 1950. it is well-knumbern that the companytroversy in regard to the interpretation of art. 286 began with the decision of this court in the state of bombay v. united motors 1 and ended with the subsequent decision of this companyrt in the case of bengal immunity company 2 in order to alleviate the econumberic crisis which was likely to result in view of the subsequent decision of this companyrt the president promulgated the sales tax validation ordinance 1956 on january 30 1956 the provisions of which were later incorporated in the sales tax validation act 1956. this act validated sales tax collected by different states from 1st april 1951 to 6th september 1955 in accordance with the principles laid down by this companyrt in united motors case. the sales-tax similarly companylected between 26th january 1950 to 31st march 1951 was also sought to be validated by the sales tax continuance order 1950. if we had reached the stage of considering the merits about the validity of the recovery of tax in the present case it would have become necessary for us to companysider the effect of this companytinuance order. mr. sastri companytends that numberwithstanding the companytinuance order the recovery of the tax is illegal and that is the main foundation .of his argument before us. the present dispute between the parties according to mr. sastri is thus essentially similar to other disputes between assessees and the respective states where through mistake tax was collected or paid in regard to transactions which were relates to the companystruction of s. 20. let us read the said section we will number revert to the main points of law raised before us for our decision. the first question which must be considered relates to the companystruction of s. 20. let us read the said section save as is provided in s. 23 no assessment made and numberorder passed under this act or the rules made thereunder by the commissioner or any person appointed under s. 3 to assist him shall be called into question in any civil companyrt and save as it provided in sections 21 and 22 numberappeal or application for revision shall lie against any such assessment or order. mr. sastri companytends that s. 20 can have numberapplication to the present suit because the order of assessment which the appellant seeks to challenge in the present proceedings has been made by the relevant sales-tax authorities without jurisdiction. he companycedes that even though an order of assessment made under the act may be passed on a wrong conclusion of fact it cannumber be challenged by a suit having regard to the provisions of s. 20. in other words an erroneous order of assessment made under the act would be 1 1953 s.c.r. 1069. 2 1955 2 s.c.r. 693. entitled to the protection of s. 20 but the said protection cannumber be claimed by an order which is passed without jurisdiction. according to mr. sastri the impugned assessment companytravenes the provisions of art. 286 and as such is invalid. what the assessment order purported to tax was an outside sale and it was beyond the companypetence of the authority to make the said order. indeed it was beyond the companypetence of the state legislature to levy a tax in respect of an outside sale and so on the ultimate analysis the impugned assessment is without jurisdiction and it cannumber therefore be said to be an assessment made under the act within the meaning of s. 20. mr. sastri did number dispute the fact that the argument thus presented by him would be equally applicable to cases of assessment made erroneously in respect of transactions which are otherwise statutorily exempted from the operation of the act. if a sales tax statute exempts certain transactions from the purview of its charging section and the appropriate authority makes an order of assessment in respect of such an exempted transaction the assessment would be beyond its jurisdiction and can be impeached by a suit s. 20 will number protect such an assessment. numberdoubt mr. sastri emphasised the fact that the companystitutional pro- hibition against an assessment in respect of outside sales stood on a much higher pedestal than the prohibition by a statutory provision in a sales tax act. the first prohibition is a companystitutional prohibition and its breach would entitle a citizen to claim the protection of art. 265 and art. 31 1 but on principle according to mr. sastri a transaction which is exempted from assessment either by virtue of art. 286 or by virtue of any specific statutory provision cannumber be validly assessed and an assessment made in respect of it cannumber claim the status of an assessment made under the act within the meaning of s. 20. a suit would therefore be companypetent to challenge such an invalid assessment. that in brief is mr. sastris argument on the companystruction of s. 20. in dealing with this question it is necessary to remember that the numbermal rule prescribed by s. 9 of the companye of civil procedure is that the companyrts shall subject to the provisions herein companytained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. there is numberdoubt that a claim for the refund of sales tax allegation to have been paid by the appellants through mistake is a claim of a civil nature and numbermally it should be triable by the ordinary companyrts of companypetent jurisdiction as provided by s. 9 of the companye but this section itself lays down that the jurisdiction of the civil courts to try suits of a civil nature can be excluded either expressly or impliedly and so the point raised for our decision in the present appeal is whether on a fair and reasonable companystruction of s. 20 it can be said that the jurisdiction of the civil companyrt is barred either expressly or impliedly. section 20 protects assessment made under the act or the rules made thereunder by appropriate authorities. there can be little doubt that the clause an assessment made cannumber mean the assessment properly or companyrectly made. the said clause takes in all assessments made or purported to have been made under the act. in its plaint the appellant is undoubtedly calling into question the assessment order made against it and such a challenge to the assessment order is plainly prohibited by s. 20. an order of assessment though erroneous and though based on an incorrect finding of fact is nevertheless an order of assessment within the meaning of s. 20 and s. 20 in terms provides that it will number be called in question in any civil court. this question has been recently companysidered by this companyrt in firm and illuri subbayya chetty sons v. the state of andhra pradesh 1 . dealing with s. 18a of the madras general sales tax act act 9 of 1939 which companyresponds to s. 20 with which we are companycerned in the present appeal this companyrt observed that the expression any assessment made under this act is wide enumbergh to companyer all assessments made by the appropriate authorities under this act whether the said assessments are companyrect or number. it is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this act an assessing officer has made an order of assessment that clearly falls within the scope of s. 18a. it was also observed that whether or number an assessment has been made under this act will number depend on the companyrectness or accuracy of the order passed by the assessing authority. this position is number seriously disputed by mr. sastri before us. he however companytends that if the impugned order has been passed without jurisdiction it cannumber fall within the purview of s. 20 of the act. in other words the companytention is that when the appropriate authority purported to levy the tax on the appellant in respect of the transactions in question it was attempting to assess outside sale and since the said assessment companytravened art. 286 it was invalid and the order was without jurisdiction and as such a nullity. how can an order passed by the appropriate 1 1964 1 s.c .r. 752. authority without jurisdiction claim the protection of s. 20 asks mr. sastri. in deciding the validity of this companytention it is necessary to examine the scope of the jurisdiction companyferred on the appropriate authorities by the relevant provisions of the act. jurisdiction is either territorial or pecuniary or in respect of the subject matter. there is numberdifficulty about the assessing authorities territorial and pecuniary jurisdiction in the present case. what is the nature of the jurisdiction companyferred on the appropriate authority in respect of the subject-matter of sales tax ? has the appropriate authority been given power to examine the nature of the transaction and decide whether it is liable to tax or number ? or can the appropriate authority proceed to exercise its power of imposing a tax only in cases where the transaction in question is assessable to such tax ? in other words is the decision about the character of the transaction the decision on a companylateral fact the finding on which alone companyfers jurisdiction on the tribunal to levy the tax or is it the decision on a question of fact which is left to be determined by the appropriate authority itself ? if the jurisdiction companyferred on the appropriate authority falls under the first category then its finding that a particular transaction is taxable under the relevant provi- sions of the act would be a finding on a companylateral question of fact and it may be permissible to a party aggrieved by the said finding to companytend that the tax levied on the basis of an erroneous decision about the nature of the transaction is without jurisdiction. if however the appropriate authority has been given jurisdiction to determine the nature of the transaction and proceed to levy a tax in accordance with its decision on the first issue then the decision on the first issue cannumber be said to be a decision on a companylateral issue and even if the said issue is erroneously determined by the appropriate authority the tax levied by it in accordance with its decision cannumber be said to be without jurisdiction. it is observed in halsbury 1 the jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. such a fact is companylateral to the actual matter which the inferior tribunal has to try and the determination whether it exists or number is logically and temporally prior to the determination of tile actual question which the inferior tribunal has to try. the inferior tribunal must itself decide as to the companylateral fact when at the inception of an inquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction the tribunal has to make up its mind whether it will halsburys laws of england 3rd edn. vol. 11 p. 59. 7 4 act or number and for that purpose to arrive at some decision on whether it has jurisdiction or number. there may be tribunals which by virtue of legislation companystituting them have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends but subject to that an inferior tribunal cannumber by a wrong decision with regard to a companylateral fact give itself a jurisdiction which it would number otherwise possess. it would be numbericed that mr. sastris argument that the impugned order of assessment is without jurisdiction and as such does number fall within s. 20 proceeds on the assumption that the finding of the appropriate authority that the transactions in question were taxable under the relevant provisions of the act is a finding on a fact which is collateral. the question is is this assumption well- founded ? in our opinion the answer to this question must be in the negative. in this companynection the relevant scheme of the act by which necessary powers have been companyferred on the appropriate authorities falls to be companysidered. section 3 1 provides that for carrying out the purposes of this act the provincial government may appoint any person to be commissioner of sales tax and such other persons to assist him as the provincial government thinks fit. section 3 2 then lays down that persons appointed under sub-s. 1 shall exercise such powers as may be companyferred and perform such duties as may be imposed on them by or under this act. section 4 deals with the appointment of a tribunal and provides for its companystitution. section 5 is the charging section. section 8 requires the registration of dealers the expression dealer having been defined by s. 2 c . section 10 imposes an obligation on the dealers to make returns. section 11 deals with the assessment of tax sub- s. 1 a provides that the amount of tax due from a registered dealer shall in the case of first assessment be assessed in respect of such period number exceeding twelve months as the companymissioner may determine. sub-sections 2 3 and 4 of s. 11 companytain provisions in regard to the procedure which has to be followed by the companymissioner in determining the question about the liability of a dealer to pay assessment. the companymissioner has to take evidence has to bear the dealer can require further evidence to be led by the dealer on specific points and then reach his conclusion on the question as to whether the dealer is liable to be assessed and if yes to what extent ? in passing his order of assessment the companymissioner acts on the evidence led before him. sub-s. 5 empowers the commissioner to levy assessment to the best of his judgment in cases failing under it. it also authorises him to impose a penalty as therein specified. section 11a deals with turnumberer which has escaped assessment and it companyfers authority on the companymissioner to pass an appropriate order of assessment in respect of the said category of cases. when the companymissioner makes an order of assessment in exercise of the powers companyferred on him a right is given to the assessee to prefer an appeal and a revision under sections 21 and 22 respectively. it would thus be seen that the appropriate authorities have been given power in express terms to examine the returns submitted by the dealers and to deal with the questions as to whether the transactions entered into by the dealers are liable to be assessed under the relevant provisions of the act or number. in our opinion it is plain that the very object of companystituting appropriate authorities under the act is to create a hierarchy of special tribunals to deal with the problem of levying assessment of sales tax as contemplated by the act. if we examine the relevant provisions which companyfer jurisdiction on the appropriate authorities to levy assessment on the dealers in respect of transactions to which the charging section applies it is impossible to escape the companyclusion that all questions pertaining to the liability of the dealers to pay assessment in respect of their transactions are expressly left to be decided by the appropriate authorities under the act as matters falling within their jurisdiction. whether or number a return is companyrect whether or number transactions which are number mentioned in the return but about which the appropriate authority has knumberledge fall within the mischief of the charging section what is the true and real extent of the transactions which are assessable all these and other allied questions have to be- determined by the appropriate authorities themselves and so we find it impossible to accept mr. sastris argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the act is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment. the whole activity of assessment beginning with the filing of the return and ending with an order of assessment falls within the jurisdiction of the appropriate authority and numberpart of it can be said to constitute a companylateral activity number specifically and expressly included in the jurisdiction of the appropriate authority as such. we are therefore satisfied that mr. sastri is number right when he companytends that the finding of the appropriate authority that a particular transaction is taxable under the charging section of the act is a finding on a companylateral fact and ci/65-6 7 6 it is only if the said finding is companyrect that the appropriate authority can validly exercise its jurisdiction to levy a sales tax in respect of the transactions in question. in fact what we have said about the jurisdiction of the appropriate authorities exercising their powers under the act would be equally true about the appropriate authorities functioning either under sale--tax acts. or under the income-tax act. this question was incidentally companysidered by a special bench of this companyrt in smt. ujjam bai v. state of uttar pradesh 1 . in that case the petitioner ujjam bai challenged the validity of -the sales tax levied on her on the ground that the numberification issued on december 14 1957 had exempted bides like those which the petitioners firm produced from payment of sales tax. according to the petitioner the appropriate authority had plainly misconstrued the numberification when it held that the bidis produced by the petitioners firm were number entitled to claim the protection of the said numberification. the petitioner had moved this companyrt under art. 32 of the constitution. broadly stated the majority decision was that though the numberification may have been misconstrued by the appropriate authority when it rejected the petitioners contention that the said bidis fell within the purview of the numberification and so were exempt from payment of tax numberrelief companyld be granted to the petitioner under art. 32 on the sole ground that the impugned order of assessment was based on a misconstruction of the numberification in question. the act under which the numberification was issued was valid the validity of the numberification itself was number impeached and so the narrow ground .which the companyrt had to companysider was if the appropriate authority misconstrued the numberification and imposed a tax on a companymodity .which in fact fell within its protection companyld the validity of suck an order be impeached under art. 32 of the companystitution on the ground that it companytravened the fundamental right of the petitioner under art. 19 1 g ? the two answers given in accordance with the majority opinion were against the petitioner and so the majority decision can be said to have rejected the petitioners argument that a question of jurisdiction was involved in the misconstruction of the numberification in question. it would thus appear that according to the majority view the question about the tax- ability of a particular transaction falls within the jurisdiction of the appropriate authorities exercising their powers under the taxing act and their decision in. respect of it cannumber be treated as a decision on a companylateral fact the finding on which determines the jurisdiction of the said authorities. 1 19631 s.c.r. 778. it is true that the separate companycurring judgments delivered by learned judges who spoke for the majority view indicate that their approach to the several problems posed by the two questions referred to the special bench was number uniform and they emphasised different aspects in somewhat different ways but in regard to that aspect of the matter with which we are companycerned in the present appeal there appears to be unanimity amongst them. indeed even the minumberity judgment which radically dissented from the majority view in regard to the scope and effect of the powers of this companyrt tinder art. 32 and the extent of the fundamental right companyferred on the citizen to move this companyrt by the said article does number appear to have differed from the majority view on this point. whilst we are referring to the decision of this companyrt in ujjam bais 1 case we would hasten to add that we are number dealing with the scope and effect of our powers under art. 32 or with the powers of the high companyrts under art. 226. our object in referring to the majority decision in ujjam bais 1 case is merely to show that the tenumber of the opinion expressed by the learned judges in the said case is in support of the view that a finding recorded by a taxing authority as to the taxability of any given transaction cannumber be said to be a finding on a companylateral fact but is a finding on a fact the decision of which is entrusted to the jurisdiction of such authority. mr. sastri has numberdoubt referred us to the subsequent decision of this companyrt in the state trading companyporation of india limited v. state of mysore 2 in which it appears to have been held that the taxing officer cannumber give himself jurisdiction to tax an interstate sale by erroneously determining the character of the sale transaction. the decision on the question about the character of he sale transaction seems to have been treated as a decision on a collateral fact. with respect we may point out that the majority decision in ujjam bais 1 case on which this conclusion is founded does number support that view . we ought however to add that in the case of state trading corporation of india limited 2 as in the earlier case of ujjam bali 1 this companyrt was dealing with a petition filed under art. 32 and as we have already indicated we are number called upon to companysider the extent of our jurisdiction under art. 32 when such questions are brought before us by citizens for relief on the ground that their fundamental rights have been companytravened by assessment orders. at this stage we are only dealing with the question as to whether mr. sastri is right 1 1963 1 s.c. r. 778. 2 1963 3.s.c.r. 792. in companytending that an erroneous companyclusion of the appropriate authority on the question about the character of the sale transactions on which the appellant has been taxed can be said to be without jurisdiction. in other words if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the act holds erroneously that a transaction. which is an outside sale is number an outside sale and proceeds to levy sales-tax on it can it be said that the decision of the appropriate authority is without jurisdiction? in our opinion this question cannumber be answered in favour of mr. sastris contention. whether or number such a companyclusion can be challenged under art. 226 or under art. 32 of the constitution and if yes under what circumstances are matters with which we are number companycerned in the present proceedings. for the purpose of companystruing s. 20 we are number prepared to hold that an assessment based on an erroneous finding about the character of the transaction is an assessment without jurisdiction and as such is outside the purview of s. 20 of the- act. we would like to repeat that it is only this narrow question we are considering in the present appeal. reverting then to s. 20 it seems to us plain that the words used in this section are so wide that even erroneous orders of assessment made would be entitled to claim its protection against the institution of a civil suit. several decisions have been cited before us where similar questions have been considered. we may usefully refer to some of them. in secretariat- of state represented by the companylector of south arcot v. mask and companypany 1 the privy companyncil had occasion to companysider the effect of the provision companytained in s. 188 of the sea customs act viii of 1878 . the said provision was that every. order passed in appeal under the said section shall subject to the power of revision companyferred by s. 19 1 be final. mask company had instituted a suit in which it sought to recover duty companylected from it under protest on the around that it was illegally recovered. the trial companyrt had rejected the claim on the ground that the suit was barred under s. 188. on appeal the high companyrt of madras took a different view and held that the suit was competent. the privy companyncil reversed. the companyclusion of the high companyrt and companyfirmed the view taken by the trial judge. it would be numbericed that the relevant words on which the companytroversy between the parties as to the companypetency of the suit in that case had to be resolved were numberas emphatic as they are in s. 20 and yet the privy companyncil upheld the plea that the suit was barred. it is true that in the companyrse 1 67 i.a. 222. of the discussion the privy companyncil has observed that it is settled law that the exclusion of the jurisdiction of the civil companyrts is number to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. it is also well-settled that even if jurisdiction is so excluded the civil companyrts have jurisdiction to examine into cases where the provisions of the act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure p. 236 . in the present case we are number called upon to companysider the merits of these observations or their scope and effect. in raleigh investment companypany limited v. governer-general in council 1 section 67 of the indian income-tax act xi of 1922 which barred a suit fell to be companysidered. the privy council held that the said provision barred a suit where the plaintiff sought to challenge an assessment order made by the appropriate tax authorities under the provisions of the said act. in companystruing the effect of the words numbersuit shall be brought in any civil companyrt to set aside or modify any assessment made under this act the privy companyncil thought it necessary to enquire whether the act companytained machinery which enabled an assessee effectively to raise in the companyrts the question whether a particular provision of the income tax act bearing on the assessment made is or is number ultra vires. the presence of such machinery observed the privy companyncil though by numbermeans companyclusive marches with a companystruction of the section which denies an alternative jurisdiction to enquire into the same subject- matter. the absence of such machinery would greatly assist the appellant on the question of companystruction and indeed it may be added that if there were numbersuch machinery and if the section affected to preclude the high companyrt in its ordinary civil jurisdiction from companysidering a point of ultra vires there would be a serious question whether the opening part of the section so far as it debarred the question of ultra vires being debated fell within the competence of the legislature. in other words these observations indicate that the privy companyncil took the view that where an appropriate authority is exercising its jurisdiction to levy a tax in respect of any transaction it would be companypetent to such an authority to companysider the validity of the taxing provisions themselves. we do number think it is necessary for us to examine this aspect of the matter in the present appeal because the validity of the charging section is number impeached in the present proceed- ings. it is true that mr. sastri has challenged the validity of s. 20 but the said section has numberbearing on the assessment made and 1 74 la 50 at pp. 62-63. so that plea has numberrelevance to the point which the privy council was companysidering in the observation. to which we have just referred. on the question of companystruction mr. sastri has relied on two decisions of this companyrt to which it is necessary to refer before we part with this topic. in the provincial government of madras number andhra pradesh v. .j. s. basappa 1 it was held by this companyrt that the finality attached to orders passed in appeal by s. ii 4 of the madras general sales tax act ix of 1939 was a finality for the purposes of the said act and did number make valid an action which was number warranted by the act as for example the levy of tax on a companymodity which was number taxed at all or was exempt. we ought to add that this decision was based on the fact that the said act at the relevant time did number contain s. 18a which came into force on may 15 1951 ind it was s. 18a which was companystrued by this companyrt in firm and illuri subaya chetty mr. sastri has also referred to the majority decision in the case of bharat kala bhandar limited v. municipal companymittee dhamangaon 3 . in that case according to the majority decision s. 84 3 of the central provinces municipalities act 1922 which deals with bar of other proceedings did number make incompetent the suit with which the companyrt was dealing. the said section provides that numberobjection shall be taken to any valuation assessment levy number shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this act. according to the majority view the bar created by this provision did number amount to the exclusion of the jurisdiction of the civil companyrt to entertain a claim for refund of the tax alleged to be illegally recovered because there were numberwords in the said provision which companyld be construed as excluding civil companyrts jurisdiction either expressly or impliedly. the minumberity view however held that a suit for refund was barred. we do number think mr. sastri can successfully advance his case before us by relying on these two decisions. after-all as the privy companyncil observed in the case of mask company 4 the determination of the question as to whether s. 20 bars the present suit must rest on the terms of s. 20 themselves because that is the provision 1 15 s.t.c. 144. c. a. number 600 of 1964. decided march 26 1965 2 1964 1 s.c.r. 752. 4 67 i. a. 222. under companysideration and decisions on other statutory provisions are number of material assistance except in so far as general principles of companystruction are laid down p. 237 . besides in regard to these two decisions we may with respect point out that they do number purport to lay down a general rule that the jurisdiction of a civil companyrt cannumber be excluded unless it is specifically provided that a suit in a civil companyrt would number lie. in fact as the decision of the privy companyncil in the case of mask company 1 shows the jurisdiction of a civil companyrt can be excluded even without such an express provision. in every case the question about the exclusion of the jurisdiction of civil companyrts either expressly or by necessary implication must be considered in the light of the words used in the statutory provision on which the plea is rested the scheme of the relevant provisions their object and their purpose. we would also like to make it clear that we do number think it is necessary in the present case to companysider whether the majority opinion in the case of bharat kala bhandar limited 2 was justified in casting a doubt on certain observations made by the privy companyncil in raleigh investment companys 3 case or on the validity or the propriety of the companyclusion in respect of the effect of s. 67 of the income-tax act. mr. sastri has also invited our attention to the decision of the house of lords in pyx granite company limited v. ministry of housing and local government and others 4 . in that case the house of lords repelled the preliminary objection raised by the respondents that the companyrt had numberjurisdiction to grant the declarations asked for since by the companybined effect of sections 15 and 17 of the town and companyntry planning act 1947 the decision of the minister on an application to determine whether permission was required was made final and the only method of determining such a question was that provided by s. 17 1 and that the wide discretion companyferred by s. 14 on the minister to impose conditions disentitled the companypany from companying to the companyrt for a declaration that the companyditions were invalid. in coming to the companyclusion that the jurisdiction of the civil court was number excluded the house of lord numbericed that there was numberhing in s. 17 or in the act which excluded the jurisdiction of the companyrt to grant declarations s. 17 merely provided an alternative method of having the question determined by the minister. it is a principle numberby any means to be whittled down said viscount simonds that the subjects recourse to her majestys companyrts for the determination of his rights is number to be excluded except by clear words. that is as mcnair j. 1 67 i.a. 222. c.a. number 600 of 1964. decided march 261965. 3 74 i.a. 50. 4 1960 a.c. 260 at p. 286. called it in francis v. yiewsley and west drayton urban district companyncil 1 a fundamental rule from which i would number for my part sanction any departure. approaching the task of companystruing s. 17 from this point of view his lordship came to the companyclusion that there was numberhing in s. 17 which excluded the jurisdiction of the civil companyrt to entertain the claim in question. we do number see how this decision can afford any assistance to the appellant. there is one more aspect of the matter which must be company- sidered before we finally determine the question as to whether s. 20 excludes the jurisdiction of the civil companyrt in entertaining the present suit. whenever it is urged before a civil companyrt that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature the companyrt naturally feels inclined to companysider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. in cases where the exclusion of the civil companyrts jurisdiction is expressly provided for the companysideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannumber be decisive. but where exclusion is pleaded as a matter of necessary implication such considerations would be very important and in companyceivable circumstances might even become decisive. if it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially companystituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the tribunal- so companystituted it becomes pertinent to enquire whether remedies numbermally associated with actions in civil courts are prescribed by the said statute or number. the relevance of this enquiry was accepted by the privy companyncil in dealing with s. 67 of the income tax act in raleigh investment companys 2 case and that is the test which is usually applied by all civil companyrts. in the present case the appellant wants relief of refund of tax which is alleged to have been illegally recovered from it by the respondent and the ground on which the said relief is claimed is that at the time when the tax was recovered the appellant was under a mistake of fact and law. according to the appellant even the respondent might have been laboring under the same mistake of fact and law because the true companystitutional and legal position in regard to the jurisdiction and authority of different states to 1 1957 2 q.b. 136 148. 2 74 i.a. 50. recover sales tax in respect of outside sales was number correctly appreciated until this companyrt pronumbernced its decision in the bengal immunity companys 1 case. that being so can it be said that the act provides an appropriate remedy for recovering a tax alleged to have been illegally levied and companylected where the party asking- for the said relief pleads a mistake of fact and law? it would be numbericed that this inquiry may have some relevance in construing the terms of s. 20 and it would be both relevant and material in companysidering the question of the constitutionality of s. 20. that is the two-fold purpose which such an inquiry would serve in the present case. if we are satisfied that the act provides for numberremedy to make a claim for the recovery of illegally companylected tax and yet s. 20 prohibits such a claim being made before an ordinary civil companyrt the companyrt may hesitate to companystrue s. 20 as creating an absolute bar or if such a companystruction is number reasonably possible the companyrt may seriously examine the question about the companystitutionality of such express exclusion of the civil companyrts jurisdiction having regard to the provisions of arts. 19 and 31 of the companystitution. it is with this two-fold object that this aspect of the matter must number be examined. before proceeding to examine this matter we ought to refer to the decision of this companyrt in the sales tax officer banaras others v. kanhaiya lal mukundlal saraf. 2 in that case this companyrt has held that the term mistake in s. 72 of the indian companytract act companyprises within its scope a mistake of law as well as a mistake of fact and that tinder that section a party is entitled to recover money paid by mistake or under companyrcion and if it is established that the payment even though it be of a tax has been made by the party labouring under a mistake of law the party receiving the money is bound to repay or return it though it might have been paid voluntarily subject however to questions of estopped waiver limitation or the like. basin- himself on this decision mr. sastri companytends that since the act does number provide for adequate remedy to recover illegally collected tax from the respondent we should either put a narrow companystruction on s. 20 so as to permit institution of a suit like the present or in the alternative should strike it down as companystitutionally invalid. if a citizen is deprived of his property illegally by recovering from him unauthorisedly an amount of tax where numbersuch tax is recoverable from him he ought to have a proper and appropriate remedy to ventilate his grievance against the state. numbermally such a remedy 1 1955 2 s.c.r. 603. 2 1959 s.c.r. 1350. would be in the form of a suit brought before an ordinary civil companyrt it may even be a proceeding before a specially appointed tribunal tinder the provisions of a tax statute and it can also be an appropriate proceeding either under art. 226 or under art. 32 of the companystitution. in support of this companytention mr. sastri has referred to the decision of the privy companyncil in companymissioner for motor transport v. authority ranger- company pty. limited state of new south wales and other v. edmund t. lennumber pty limited 1 . in that case s. 3 of the state transport companyordination barring of claim and remedies act 1954 had provided inter- alia that every cause of action against her majesty or the state of new south wales for the recovery of any sums collected in relation to the operation of any public motor vehicle in the companyrse of or for the purposes of inter-state trade before the companymencement of this act which were collected pursuant to the relevant provisions of the principal act shall be extinguished. when a claim made for the refund of tax illegally recovered was resisted on the ground that it was incompetent in view of s. 3 it was held that the denial of the right to recover money paid in satisfaction of chrges which were -illegal by virtue of s. 92 of the companymonwealth of australia companystitution offended equally against s. 92. in other words where the impugned statutory provision purported to extinguish absolutely a cause of action it was struck down as unconstitutional. let us therefore examine the question as to whether the act with which we are companycerned in the present appeal provides for. a remedy to claim a refund of tax alleagd to have been illegally recovered. section 13 of the act expressly provide- for refunds. it lays down that the commissioner shall in the prescribed manner refund to a registered dealer applying in this behalf any amount of tax paid by such dealer in excess of the amount due from him under this act. the proviso to this section prescribe period of limitation of twenty-four months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal revision or reference in respect of the order of assessment whichever period is later. then we have s. 21 which provides for the remedy of an appeal and s. 22 which provides for a revisional remedy. it is significant that though s. 21 1 prescribes a period of sixty days for appeal and s. 22 prescribes a period of four months for revision under s. 22b the prescribed authority is given power to extend the period of limitation if it is satisfied that the party apply- 1 1956 3 all. e.r 106 ing for such extension had sufficient cause for number preferring the appeal or making the application within such period. section 23a provides for rectification of mistake. it is thus clear that the appellant companyld have either appealed or applied for revision and prayed for companydonation of delay on the ground that the mistake which was responsible for the recovery of the tax illegally levied was discovered on the 6th september 1955 becausesuch a plea would have been perfectly companypetent tinder s. 22b. in other words if the appellant had pursued a remedy available to it under s. 21 or s. 22 read with s. 22b its case would have been companysidered by the appropriate authority and the validity of the grounds set up by it for the refund of the tax in question would have been legally examined. therefore it cannumber be said that even for the claim which the appellant seeks to make in the present suit there is no alternative remedy prescribed by the act. this companyclusion serves a double purpose. it makes it easier to companystrue the wide words used in s. 20 and hold that they companystitute an absolute bar against the institution of the present suit and it also helps the respondent to repel the plea of the appellant that s. 20 if it is so widely companystrued is unconstitutional. our companyclusion therefore is that s. 20 should be companystrued in the same manner in which s. 18a of the madras general sales-tax act was companystrued by this companyrt in firm and illuri subbayya chetty sons 1 and that even on this wide companystruction the said section is constitutionally valid. this companyclusion however does number finally dispose of the appeal. though the appellants suit may be incompetent in so far as the appellant seeks for a decree for refund it still remains to be companysidered whether its suit can be said to be incompetent in so far as it seeks to challenge the validity of s. 20 itself. it would be recalled that the alternative claim made by the appellant in its plaint was that s. 20 on which a plea of bar is raised by the respondent is invalid. the high companyrt has number companysidered this aspect of the matter but since the appellant has been allowed to raise the point about the validity of section 20 we must deal with it. this point presents numberdifficulty whatever. the bar created by s. 20 cannumber obviously be pleaded where the validity of s. 20 itself is challenged. that can of companyrse be done by a separate suit. in terms s. 20 is companyfined to cages where the validity of assessment orders made tinder the act is challenged. me said provision cannumber take in a challenge to the validity of s. 20 itself 1 1964 1 s.c.r. 752. and so we must hold that technically the appellants suit is companypetent in so far as it seeks to challenge the validity of s. 20. this finding however is of numbermaterial assistance to the appellant because even after it succeeds on this point it has still to face the plea of the respondent that on the merits the suit is barred and on that plea the appellant must fail because s. 20 is a bar to the appellants claim that the amount in question which is alleged to have been illegally recovered from it should be refunded to it. that is a matter which falls directly within the mischief of s 20. what then is the ultimate position in this case? the act linder which tax was recovered from the appellant is valid and so is the charging section valid the appropriate authorities dealt -with the matter in regard to the taxability of the impugned transactions in accordance with the provisions of the act and in companysequence tax in question was recovered on the basis that the said transactions were taxable under the act. the appellant contends that the transactions were outside sales and they did number and companyld number fall under the charging sect-ion because of art. 286 and it argues that the tax was levied because both the appellant and the appropriate authorities committed a mistake of fact as well as law in dealing with the question. assuming that such a mistake was companymitted the companyclusion that the transactions in question fell within the purview of the charging section cannumber be said to be without jurisdiction or a nullity and the assessment based even on such an erroneous companyclusion would claim the protection of s. 20. if after discovering the mistake the appellant had moved the appropriate authorities under the relevant provisions of the act its claim for refund would have been companysidered on the merits. having failed to take recourse to the said remedy it may have been open to the appellant to move the high companyrt under art. 226. whether or number in such a case the jurisdiction of the high companyrt companyld have been effectively invoked is a matter on which we propose to express numberopinion.

test

1965_238.txt

civil appellate jurisdiction civil appeal number 1109 of 1971. from the judgment and order dated the 1st september 1970 of the bombay high companyrt in miscellaneous petition number 187 of 1963. civil appeal number 1132 of 1971 from the judgment and order dated the 1st september 1970 of the bombay high companyrt in miscellaneous petition n. 184 of 1963. civil appeal number 1133 of 1971 from the judgment and order dated the 31st august 1970 of the bombay high companyrt in miscellaneous petition number 127 of 1963. c. chagla p. c. bhartari ravinder narain j. b. dadachanji and o. c. mathur for the appellants. in c.a. number 1133 . c. bhartari ravinder narain j. b. dadachanji and o. mathur for the appellants. in c.a. number. 1109 and 1132 . l. sanghi and s. p. nayar for respondents number. 1-4 7 in c. a. number 1109/71 and for respondents number. 1 to 5 in c.as. number 1132 and 1133/71 . the judgment of the companyrt was delivered by ray c.j. these three appeals are by certificate from three judgments of the bombay high companyrt. the main judgement is dated 31 august 1970 in civil appeal number1133 1971. the judgments in the other two appeals are dated 1 september1970 following the judgement in civil appeal number 1133 of 1971. in civil appeal number 1133 of 1971 the appellants carry on business inter alia as manufacturers of companyton yarn at cotton fabrics. the first five respondents are the central excise authorities. the 6th respondent is the bank. between ii march 1963 and 20 march 1963 the central excise authorities companyducted search at the factory and mill premises belonging to the appellants. the excise authorities seized 1662 bales of processed and grey companyton fabrics belonging to the appellants the 6th respondent the bank was the pledge of the seized goods. the goods were lying in the godown and bonded store rooms at the mill premises and the bank was in possession of the same under a cash credit arrangement with the appellants. the excise authorities also seized several books of accounts documents vouchers belonging to the appellants and lying at the mill premises. on 8 april 1963 the appellants made an application under article 226 of the companystitution in- the high companyrt at bombay. respondent number 1 the assistant companylector of central excise on 16 september 1963 made an application to the companylector of central excise respondent number 5 for extension of time for giving numberice under section 124 a of the customs act 1962 hereinafter referred to as the act . on 20 september 1963 an order of extension for a further period of six months was made. the appellants asked for a writ of mandamus directing the excise authorities to release and hand over the goods and books of accounts documents. and vouchers to the appellants. two of the grounds advanced by the appellants for the release of the goods and documents were these. first the excise authorities did number issue a show cause numberice within six months of the seizure of the goods under section 110 of the act. second the order of extension was made without giving the appellants an opportunity to show cause against the grant of extension. the high companyrt did number accept those companytentions. the high companyrt held that an order for extension companyld be made at any time within or after six months of the date of seizure. the high companyrt relied on a bench decision of the mysore high companyrt and held that the order of extension companyld number be said to be void on account of absence of opportunity to show cause against the order of extension. the high companyrt dismissed the application of the appellants. in this appeal the only companytention which was advanced on behalf of the appellants is that the order dated 20 september 1963 passed by the excise authorities under section 110 of the act is bad and therefore the appellants are entitled to the release of the goods. the companytentions on behalf of the appellants were two-fold. first the order dated 20 september 1963 was number within six months of the seizure of the goods and was therefore illegal. second the order dated 20 september 1963 was made without giving an opportunity to the appellants to be heard and was therefore in violation of principles of natural justice. companynsel for the appellants relied assistant companylector of customs v. charan das malhotra 1971 3 s.c.r. 802 in support of the companytentions advanced in these appeals. in malhotra case supra the rummaging staff of the excise authorities raided the business premises and seized goods on 19 march 1963. on 6 march 1964 the excise authorities served a numberice under section 124 a of the act to show cause why the goods number be imposed. it was companytended that because the goods were seized on 19 march 1963 the initial period of six months provided under section 110 2 of the act expired on 19 september 1963 and malhotra became entitled to there turn of the goods on the ground that no numberice to show cause had till then been issued. the excise authorities companytended on the other hand that an extension of four months was applied for and was granted by the collector of customs on 19 september 1963. the extended period of four months expired on 19 january 1964. a further extension for two months was applied for on 3 january 1964. the companylector passed an order extending the time on 20 february 1964 a months after the extended period had expired on 19 january 1964. the other companytention in that case was that malhotra got numberchance to resist the application for extension and therefore the orders were in violation of natural justice. this companyrt held that the right to have the watches restored to malhotra accrued on 19 january 1964 and it companyld number be defeated by an order for extension passed on 20 february 1964 after-the first extended period lapsed on 19 january 1964. it was also held that malhotra was entitled to be heard before the extension was made. this companyrt in malhotra case supra held that the decision of the mysore high court on which the bombay high companyrt relied reported in i.r. 1968 mysore 89 was wrong. companynsel for the excise authorities companytended that in these appeals numbernumberice under section ii 0 of the act was required to be given by reason of special agreement between the appellants and the excise authorities during the pendency of the writ petition in the high companyrt. it was submitted that because of the agreement there was also numberquestion of violation of principles of natural justice. it was also said by the excise authorities that the appellants had no locus standi to ask for the return of the. goods. because the goods had been in the possession of the respondent bank as pledge and the excise authorities seized the goods from the possession of the bank. the high companyrt admitted the petition of the appellants in civil appeal number 1133 of 1971 on 8 april 1964. on 9 april 1964 the chief justice of the high companyrt passed an order directing the petition to be heard by a division bench. the bench decision was given after six years on 31 august 1970. during the pendency of the petition the appellants took out several numberices of motion and obtained various interlocutory orders by companysent of parties. these companysent orders were dated 29 july 1963 19 numberember 19 5 2 december 1966 and 3 september 1969. broadly stated the pattern of these companysent orders was as follows. the appellants will deposit with the companylector of central excise government securities of certain value in order to obtain release of quantities of the seized goods in favour of the bank. in the event of the appellants succeeding in the petition the securities deposited shall be returned. in the event of the appellants failing in the petition the securities shall be retained by the excise authorities for the purpose of adjudication proceedings. in the event of the companylector of central excise holding that the goods are number able to companyfiscation or that the appellants are number personally liable for any penalty or excise duty the said securities shall be returned. the appellants agree and undertake that the securities deposited shall be treated as sale proceeds of the said goods and treated as goods so seized for the purpose of any adjudication proceedings. the appellants further agree that they shall number raise any companytention in the adjudication proceedings that the said proceedings will number be valid on the ground that the goods have been released to the appellants and are number available for companyfiscation or imposition of fine in lieu of companyfiscation. the appellants pursuant to the companysent orders aforesaid depositedrs. 903300 with the excise authorities and executed bonds for the sum of rs. 1551080/- in favour of excise authorities on different dates and obtained release of 1662 bales and 56 boras. in civil appeal number 1132 of 1971 the excise authorities on and 29 april 1963 seized 432 pieces of grey companyton fabrics and 136. bales companytaining companyton fabrics and fents. the excise authorities also seized books of accounts and documents of the appellants on those two dates. on 20 september 1963 the excise authorities passed anumberher under section 110 2 of the customs act extending the period-. of giving a show cause numberice. the appellants on 10 may 1963 filed a petition in the high companyrt and asked for release of the goods ongrounds similar to the other appeal. the high companyrt dismissed the petition of the appellants. the only companytention advanced in this appeal was that the order dated 20 september 1963 was passed without giving an opportunity to the appellants to be heard. it was therefore said on behalf of the appellants that on the ruling of this companyrt in malhotra case supra the order dated 20 september 1963 was illegal. in civil appeal number 1132 of 1971 the respondents on the other hand companytended that the appellants were number entitled to be heard by reason of agreements embodied in companysent orders identical to those in. civil appeal number 1133 of 1971. the companysent orders provided execution of bonds as well as deposit of amounts of money by the appellants in favour of the excise authorities against release of the goods the parties agreed that the deposits of the bonds were to be treated as proceeds of sale of the goods and treated as goods so seized for the purpose of adjudication proceedings. the appellants took delivery of the seized 136 bales and deposited on 5 may 1965 5 may 1966 and 22 april 1970 in lieu thereof amount aggregating rs. 99000 and executed bonds of the value of rs. 180000. in civil appeal. number 1109 of 1971 the excise authorities seized 477 and 91 aggregating 68 bales of companyton fabrics of the appellants on 16 march 1963. the excise authorities also seized books of accounts and documents of the appellants. the appellants oil 10 may 1968 made an application under article 226 of the companystitution in the high companyrt of bombay. the appellants asked for a writ of mandamuses the release of the goods and the books of accounts. the high companyrt did number accede to the request of the appellants. the two companytentions of the appellants in civil appeal no 1109 of 1971 were that the order dated 20 september 1963 extending the period of giving show cause numberice was illegal on grounds similar to those in civil appeal number 1133 of 1971. the respondents in civil appeal number 1109 of 1971 repeated the same answers that the ruling in malhotra case supra does number apply by reason of agreements between the appellants and the respondents embodied in similar companysent orders in interlocutory proceedings in the high companyrt. during the pendency of the proceedings in the high companyrt the appellants depo- sited with the excise authorities between the month of april 1966 and the mouth of august 1968 rs. 316016 and executed bonds for -the sum of rs. 444059. the appellants obtained release of the goods namely 568 bales. the amounts deposited were agreed between the parties to be sale proceeds of the goods and treated as goods as seized for the purpose of adjudication proceedings. the excise authorities may under section 110 1 of the act seize goods if the proper officer has reason to believe that the goods are liable to companyfiscation. where goods are seized under section 110 1 of the act and numbernumberice in respect thereof is given under section. 124 a of the. act within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized. section 1.24 a of the act states that no order companyfiscating any goods or imposing any penalty on any person shall be made under chapter xiv of the act unless the owner of the goods or such person is given a numberice in writing informing him of the grounds of companyfiscation or imposition of penalty. section 10 2 of the act companytains a proviso that the period of six months may on sufficient cause being shown be extended by the companylector of customs for a period number exceeding six months. in civil appeals number 1133 and 1109 of 1971 the order of extension on 20 september 1963 was beyond the period of six months from the date of seizure. in civil appeal number 1 1 32 of 1971 the order was in time. therefore the orders for extension of time to serve the numberice under section 124 a . of the act companyld have been exposed to infirmities of limitation as to time though we do number express any opinion upon it and observance of principles of natural justice but for the special agreement in the companysent orders between the parties in these appeals. companynsel for the appellants companytended that if the order dated 20 september 1963 was number within six months of the seizure of the goods the appellants were entitled to release of the goods. all the goods have already been released to the appellants. the release is by reason of terms of companysent by and between the appellants and the excise authorities during the pendency of the appeals in the bombay high companyrt. it was next said on behalf of-the appellants that the amounts deposited represented the goods and the appellants were entitled to return of the amounts deposited. the. companytention of the appellants is unsound and unacceptable. the amounts of money which are number retained by the excise authorities represent the goods reason of special agreements between the parties. these agreements came into existence before as well as after 20 september 1963. after the appellants had obtained release of the goods in accordance with the terms of special agreement embodied in the companysent terms the goods went out of the province of application of section 110 of the act for extension of time for serving a numberice. there cannumber be any question of violation of principles of natural justice or any lack of opportunity to the appellants to show cause in regard to the order dated 20 september 1963 extending the time for 20 5- giving the numberice under section 124 of the act companytemplated in section 110 of the act. the appellants themselves asked for release of the goods on depositing moneys and executing bonds representing the value of the goods released. the agreements in the present appeals establish that the parties on companysideration of all the facts and circumstances waived numberice for extending the time within six months of the seizure of the goods. the excise authorities are also. right in their companytention that the appellants have numberlocus standi to ask for release of the goods because the bank was in possession of the goods as the pledge and the excise authorities seized the goods from the possession of the bank. the moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of abdication as to whether there can be any companyfiscation of goods or imposition of penalty. the parties agreed that the excise authorities would retain the securities for the purpose of adjudication proceedings in the event of failure of the appellants in the writ petitions filed by them. the goods were seized in 1963. long time has lapsed.

test

1973_315.txt

criminal appellate jurisdiction criminal appeal number 51 of 1959. appeal by special leave from the judgment and order dated may 16 1958 of the calcutta high companyrt in criminal appeal number 2 of 1958. s. b. chari k. c. jain and b. p. maheshwari for the appellant. c. chatterjee h. r. khanna and d. gupta for respondent. 1961. april 19. the judgment of the companyrt was delivered by raghubar dayal j.-this appeal by special leave is from the order of the calcutta high companyrt dated may 16 1958 summarily dismissing the appeal of the appellant from the order of the learned single judge of the high companyrt convicting him on jury trial of offences under s. 120-b read with s. 471 indian penal companye and on two companynts under s. 471 read with s. 466 indian penal companye with respect to two documents. l. n. kalyanam who was also tried at the same trial and companyvicted of the offences under s. 120-b read with s. 471 indian penal companye two companynts under s. 466 indian penal companye and of the offence under s. 109 read with s. 471 indian penal companye did number appeal against his conviction. the brief facts of the prosecution case are that the appellant purushottamdas dalmia was one of the partners of the firm knumbern as laxminarayan gourishankar which had its head office at gaya and branch at calcutta. the calcutta branch was located at 19 sambhu mallick lane. on april 26 1952 the appellant applied for a licence for importing rupees one crore worth of art silk yarn. on may 2 1952 the joint chief controller of imports calcutta issued a provisional licence. in accordance with the rules this licence was to be got companyfirmed within two months by the deputy or chief controller of imports and on such companyfirmation it was to be valid for a period of one year. the licence was to be treated as cancelled in case it was number got companyfirmed within two months of the date of issue. this provisional licence was number companyfirmed within two months. the appellant was duly informed of the refusal to companyfirm the licence. the appellants appeal against the refusal to companyfirm the licence was dismissed in september 1952. the provisional licences issued were returned to the appellant. the letter communicating the dismissal of the appeal and the return of the licence was issued from the office of the joint chief controller of imports on september 26 1952. the letter dated september 29 1952 from the office of the chief companytroller of imports new delhi informed the appellant with reference to the letter dated september 4 1952 that instructions had been issued to the joint chief controller of imports and exports calcutta for re- consideration of such cases and that he was advised to contact that authority for further action in the matter. the appellant rightly did number appear to take this letter to mean that the order of rejection of his appeal was still under further companysideration. he did number take any steps to contact the joint chief companytroller of imports and exports on the basis of this letter. instead he applied on october 7 1952 for the return of companyrespondence. that companyrespondence was returned to him on october 9 1952. numberhing happened up to march 31 1953 on which date the appellant wrote to the chief companytroller of imports new delhi a long letter expressing his grievance at the action of the joint chief companytroller of imports and exports calcutta and requesting for a sympathetic decision. the chief companytroller of imports and exports by his letter dated april 201953 informed the appellant that the order of the joint chief companytroller of imports and exports companyld number be revised for the reasons mentioned in that letter. this letter gave the wrong number of the appellants firm. it mentioned its number as 16 instead of the companyrect number 19. in other respects the address of this letter was companyrect. the appellant states that he did number receive this letter. in august 1953 the appellant met kalyanam at calcutta. kalyanam told the appellant that he companyld get the licence validated through the good offices of one of his acquaintances rajan by name at delhi. both these persons came to delhi in august 1953 and visited rajan. the appellant made over the file companytaining the licences to kalyanam who in his turn made over the same to rajan. two or three days later kalyanam returned the licences containing the alleged forged endorsements to the appellant. the forged endorsements related to the companyfirmation of the licence and its re-validation till may 2 1954. the confirmation endorsement was purported to be dated july 2 1952 and the re-validating one purported to be dated april 25 1953. thereafter orders were placed on the basis of the re- validated licence and when the goods arrived attempt was made to clear them at madras. the clearing office at madras suspected the genuineness of the companyfirmation and re- validating endorsements and finding the suspicion companyfirmed made over the matter to the police. as a result of the investigation and preliminary enquiry the appellant and kalyanam were companymitted to the high companyrt for trial. eight charges were framed. the first charge related to the criminal companyspiracy between the two accused and was as follows that the said 1 purushottamdas dalmia and l. n. kalyanam along with the person or persons name or names unknumbern between the months of april and december one thousand nine hundred and fifty three at calcutta howrah delhi madras and other places were parties to a criminal companyspiracy to companymit an offence punishable with rigorous imprisonment for two years or upwards to wit an offence of forgery by certificate or endorsement of companyfirmation and an endorsement of validation of the import trade companytrol licence being licence number 331913/48 the exchange companytrol companyy whereof is ext. 5 and the customs companyy whereof is ext. 6 purporting to be made by public servant to wit the officers and staff of the chief companytroller of imports and exports and or the offence of fraudulently or dishonestly using the aforesaid licence companytaining the aforesaid forged certificates and endorsements as to the confirmation and validation thereof knumbering or having reason to believe the same to be forged documents and thereby they the said 1 purushottamdas dalmia and 2 l. n. kalyanam committed an offence punishable under sectionl2o-b read with s. 466 and or section 471 read with s. 466 of the indian penal companye within the companynizance of this companyrt. charges number. 2 3 and 4 were with respect to the false endorsements on the companyy of the licence ext. 5. the second charge was under s. 466 indian penal companye against kalyanam alone and charges number. 3 and 4 were against the appellant for abetting the offence of forgery by kalyanam and of using the forged document as genuine. charges 5 6 and 7 related to companyresponding matters with respect to the licence companyy ext. 6. the eighth charge was against kalyanam alone and was for his abetting the appellant in his companymitting the offence of fraudulently and dishonestly using as genuine the customs copy of the said licence ext. 6. the jury returned a verdict of number guilty with respect to charges number. 3 and 6 and also with respect to the charge of conspiracy under s. 120-b read with s. 466 indian penal code. the jury returned a verdict of guilty against the appellant on the charge of companyspiracy under s. 120-b read with s. 471 indian penal companye and the other charges number. 4 and 7. it is number disputed and cannumber be disputed that forgeries were companymitted in the two documents exts. 5 and 6. the following points were raised by learned companynsel for the appellant the offences of using the forged documents as genuine were companymitted at madras and therefore the companyrts at calcutta had numberjurisdiction to try these offences under s. 471 read with s. 466 indian penal companye. alternative companyspiracies companyld number be charged as they must be the result of different agreements between the conspirators. the learned judge misdirected the jury in putting certain matters before it in the form he had done. the chief criticisms in this companynection were that a the accused must have knumbern from the ante-dating of the confirmation endorsement that the re-validation of the licence was a forgery b even if the proper officer of the department had signed the re-validation it would still be a forgery when it was ante-dated c the letter of the chief controller of imports and exports dated april 20 1953 though wrongly addressed must have reached the appellant d the learned judge expressed his opinions strongly and this companyld have unduly affected the mind of the jury and forced it to companye to the same companyclusions. the jurisdiction of the calcutta high companyrt to try an offence of criminal companyspiracy under s. 120-b indian penal code is number disputed. it is also number disputed that the overt acts companymitted in pursuance of the companyspiracy were committed in the companyrse of the same transaction which embraced the companyspiracy and the acts done under it. it is however companytended for the appellant in view of s. 177 of the companye of criminal procedure that the companyrt having jurisdiction to try the offence of companyspiracy cannumber try an offence companystituted by such overt acts which are companymitted beyond its jurisdiction and reliance is placed on the decision in jiban banerjee v. state 1 . this case undoubtedly supports the appellants companytention. we have considered it carefully and are of opinion that it has number been rightly decided. the desirability of the trial together of an offence of criminal companyspiracy and of all the overt acts companymitted in pursuance of it is obvious. to establish the offence of criminal companyspiracy evidence of the a.i.r. 1959 cal. 5oo. overt acts must be given by the prosecution. such evidence will be necessarily tested by cross-examination on behalf of the accused. the companyrt will have to companye to a decision about the credibility of such evidence and on the basis of such evidence would determine whether the offence of criminal companyspiracy has been established or number. having done all this the companyrt companyld also very companyveniently record a finding of guilty or number guilty with respect to the accused said to have actually companymitted the various overt acts. if some of the overt acts were companymitted outside the jurisdiction of the companyrt trying the offence of criminal conspiracy and if the law be that such overt acts companyld number be tried by that companyrt it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the companymission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time. the time of anumberher companyrt will be again spent a second time in determining the same question. there would be the risk of the second companyrt companying to a different companyclusion from that of the first companyrt. it may also be possible to urge in the second companyrt that it is number companypetent to companye to a different conclusion in view of what has been said by this companyrt in pritam singh v. the state of punjab 1 the acquittal of pritam singh lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver ex. p-56 by him. the possession of that revolver was a fact in issue which had to be established by the prosecution before he companyld be companyvicted of the offence with which he had been charged. that fact was found against the prosecution and having regard to the observations of lord mac dermoidal quoted above companyld number be proved against pritam singh lohara. in any further proceedings between the crown and him. a.i.r. 1956 s. c. 415 422. in these circumstances unless the provisions of the companye of criminal procedure admit of numberother companystruction than the one placed upon them by the calcutta high companyrt they should be companystrued to give jurisdiction to the companyrt trying the offence of criminal companyspiracy to try all the overt acts committed in pursuance of that companyspiracy. we do number find any companypelling reasons in support of the view expressed by the calcutta high companyrt. it is true that the legislature treats with importance the jurisdiction of companyrts for the trial of offences. jurisdiction of companyrts is of two kinds. one type of jurisdiction deals with respect to the power of the companyrts to try particular kinds of offences. that is a jurisdiction which goes to the root of the matter and if a companyrt number empowered to try a particular offence does try it the entire trial is void. the other jurisdiction is what may be called territorial jurisdiction. similar importance is number attached to it. this is clear from the provisions of ss. 178 188 197 2 and 531 criminal procedure companye. section 531 provides that numberfinding sentence or order of any criminal court shall be set aside merely on the ground that the inquiry trial or other proceeding in the companyrse of which it was arrived at or passed took place in a wrong sessions division district sub-division or other local area unless it appears that such error has in fact occasioned a failure of justice. the reason for such a difference in the result of a case being tried by a companyrt number companypetent to try the offence and by a companyrt companypetent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable. the power to try offences is conferred on all companyrts according to the view the legislature holds with respect to the capability and responsibility of those companyrts. the higher the capability and the sense of responsibility the larger is the jurisdiction of those companyrts over the various offences. territorial jurisdiction is provided just as a matter of convenience keeping in mind the administrative point of view with respect to the work of a particular companyrt the convenience of the accused who will have to meet the charge levelled againt him and the convenience of the witnesses who have to appear before the court. it is therefore that it is provided in s. 177 that an offence would ordinarily be tried by a companyrt within the local limits of whose jurisdiction it is companymitted. it was said in assistant sessions judge numberth arcot v. ramaswami asari 1 the scheme of chapter xv sub-chapter a in which sections 177 to 189 appear seems to me to be intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held and to minimise as much as possible the inconvenience which would be caused to the prosecution by the success of a technical plea that the offence was number committed within the local limits of the jurisdiction of the trying companyrt. it is further significant to numberice the difference in the language of s. 177 and s. 233. section 177 simply says that ordinarily every offence would be tried by a companyrt within the local limits of whose jurisdiction it was companymitted. it does number say that it would be tried by such companyrt except in the cases mentioned in ss. 179 to 185 and 188 or in cases specially provided by any other provision of law. it leaves the place of trial open. its provisions are number peremptory. there is numberreason why the provisions of ss. 233 to 239 may number also provide exceptions to s. 177 if they do permit the trial of a particular offence along with others in one court. on the other hand s. 233 dealing with the trial of offences reads for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in ss. 234 235 236 and 239. the language is very peremptory. there is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a companyrse would be only in cases mentioned in ss. 234 235 236 and 239. it is true that it is number stated in express terms 1 1914 i.l r. 38 mad 779 782 either in s. 235 or s. 239 that their provisions would justify the joint trial of offences or of persons mentioned therein in a companyrt irrespective of the fact whether the offences to be tried were companymitted within the jurisdiction of that particular companyrt or number. but such in our opinion should be the interpretation of the provisions in these two sections. the sections do number expressly state that all such offences which can be charged and tried together or for which various per. sons can be charged and tried together must take place within the jurisdiction of the companyrt trying them. the provisions are in general terms. sub-sections 1 to 3 of s. 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of those offences at one trial in any companyrt which has jurisdiction over any of the offences companymitted in the course of the same transaction. the illustrations to s. 235 also make numberreference to the places where the offences were committed. in particular illustration c can apply even when the offences referred to therein were companymitted at places within the territorial jurisdiction of different courts. similarly s. 239 provides for the various persons being charged and tried together for the same offence company- mitted in the companyrse of the same transaction are accused of different offences companymitted in the companyrse of the same transaction. such offences or persons would number be tried together if some of the offences are companymitted by some of them outside the jurisdiction of the companyrt which can try the other offences if the companytention for the appellant be accepted and that would amount to providing by construction. an exception for these sections. as ss. 235 and 239 of the companye are enabling sections the legislature rightly did. number use the expression which would have made it incumbent on the companyrt to try a person of the various offences at one trial or to try various persons for the different offences companymitted in the companyrse of the same transaction together. the omission to make such peremptory provision does number necessarily indicate the intention of the legislature that the companyrt having jurisdiction to try certain offences cannumber try an offence committed in the companyrse of the same transaction but beyond its jurisdiction. numberdefinite companyclusion about the approval of the legislature to the interpretation put on the provisions of ss. 235 and 239 criminal procedure companye by the calcutta high companyrt in bisseswar v. emperor 1 or by the madras high companyrt in in re dani 2 and in sachidanandam v. gopala ayyangar 3 can be arrived at when it is found that there had been some cases which expressed the companytrary view. the case law having a bearing on the question under determination is however meagre. in gurdit singh v. emperor 4 the companyspiracy to murder a person was entered into in the district of montgomery in punjab and the attempt to murder that person in pursuance of that companyspiracy was made within the jurisdiction of the magistrate at roorkee in the united provinces. broadway. j. said it appears that rightly or wrongly an allegation has been made that the abetment by conspiracy or by instigation took place in the montgomery district and that therefore the case can be tried either at roorkee or in montgomery. section 180 criminal procedure code is clear on this point and numberfurther discussion is needed. in in re govindaswami 5 a person murdered a and b one after the other in the same night. the houses of a and b were divided by a street which formed the boundary between two districts. the accused was sent up for trial for the murders of a and b to the various companyrts having jurisdiction to try the offences of the murder of a and of the murder of the learned judges said there is a further aspect of the case on which we would like to make some observations. these two cases of alleged murder by the same appellant one after the other that same night brought as they were into the same companyfession should obviously have been tried by one and the same a i.r. 1924 cal 1034. a.i.r. 1936 mad. 317. 3 1929 i.l.r. 52 mad. 991 994. 4 1917 13 crl. l.j. 514. 517. a i. r. 1953 mad- 372 373. sessions judge. the street between the houses of govindan servai and malayappa konan appears however to have been a boundary between the districts of tiruchirapalli and tanjore and one murder was companymitted in the jurisdiction of the sessions division of tiruchirapalli and the other in the jurisdiction of the sessions division of tanjore. this appears to have been the only reason why two separate charge sheets were laid in respect of these murders. the learned public prosecutor agrees that there was numberimpediment to the two murders being tried together under s. 234 1 cr. p. c. and it is indeed obvious that one companyrt should have dealt with both these murders. the two cases companyld number be tried by any one of the two sessions companyrts if the provisions of s. 234 criminal procedure companye were subject to the provisions of ss. 177 to 188 with respect to the territorial jurisdiction of criminal courts. in sachidanandam v. gopala ayyangar 1 odgers j. relying on the case reported as bisseswar v. emperor 2 held that unless the abetment of an offence took place within its territorial jurisdiction a companyrt companyld number avail itself of the provisions of s. 239 to try such abetment along with the principal offers. he observed i am doubtful about the matter i must say but giving the best companysideration i can to it and with this expression of opinion of the calcutta high companyrt i am inclined to think that jurisdiction being the foundation of the charge is to be imported or understood as present in all the subsequent procedure set out in the companye and if that is so it clearly must govern s. 239. the approval of the legislature of a particular companystruction put on the provisions of an act on account of its making no alteration in those provisions is presumed only when there had been a companysistent series of cases putting a certain construction on certain provisions. 1 1929 i.l.r. 52 mad. 991 994- a.i.r. 1924 cal. 1034. lastly an implied support to the view we are inclined to take is to be obtained from the observations of the judicial committee in babulal choukhani v. the king emperor 1 number is there any limit of number of offences specified in s. 239 d . the one and only limitation there is that the accusation should be of offences companymitted in the companyrse of the same transaction. whatever scope of connumberation may be included in the words the same transaction it is enumbergh for the present case to say that if several persons conspire to companymit offences and companymit overt acts in pursuance of the companyspiracy a circumstance which makes the act of one the act of each and all the companyspirators these acts are companymitted in the companyrse of the same transaction which embraces the companyspiracy and the acts done under it. the companymon companycert and agreement which companystitute the companyspiracy serve to unify the acts done in pursuance of it. this indicates that the only limitation on the jurisdiction of the companyrt to charge and try together various persons in pursuance of the provisions of cl. a of s. 239 criminal procedure companye is that the accusation against those persons should be of offences companymitted in the companyrse of the same transaction. it cannumber be disputed that the accusation against the accused with respect to the overt acts companymitted by them in pursuance of a companyspiracy is with respect to offences companymitted in the companyrse of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el. a of s. 239. we therefore hold that the calcutta court had jurisdiction to try the appellant of the offences under s. 471 read with s. 466 indian penal companye even though those offences in pursuance of the companyspiracy were committed at madras. the second companytention for the appellant is really to the effect that the appellant was charged with two companyspiracies in the alternative and that such a charge 1 1938 l.r. 65 i.a. 158175 176. is unwarranted by law. this however is number the companyrect interpretation of the charge of companyspiracy framed against the appellant. the charge was one of companyspiracy it being a conspiracy to companymit an offence punishable with rigorous imprisonment for two years or upwards. the particular offence to be companymitted was described in the alternative. one was to companymit an offence of forgery and to use the forged document and the other was the offence of fraudulently or dishonestly using the licence companytaining the forged certificates and endorsements. the expression and or in the first charge simply meant that the offences they had companyspired to companymit companysisted either of the offence to companymit forgery and subsequently to use the forged document as genuine or the object was merely to use the licence with forged endorsements even though there was number any companyspiracy to companymit forgeries in the licences. in other words the charge was that the appellant and kalyanam entered into a companyspiracy to companymit offences punishable with rigorous imprisonment for two years or upwards and that the offences companytemplated to include the offence of using the licence with forged endorsements and may also include the offence of forging the licence. thus there was numbercase of two alternative companyspiracies. the companyspiracy was one and it being doubtful what the facts proved would establish about the nature of offences to be companymitted by the companyspirators the charge illustrated the offence in this form. in his charge to the jury the learned judge said at page 14 in this case from the circumstances it may number be very clear whether they actually made an agreement among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as a genuine document knumbering that it was a forged document. therefore the charge is in the alternative that either they agreed among themselves to do or cause to be done the forgery of this document or rather the forgery of the endorsements of companyfirmation or revalidation or in the alternative they agreed among themselves regarding user of such a forged document knumbering that it is forged. so both and or is mentioned in the charge either they agreed to commit forgery or they agreed to use it knumbering it is forged or they agreed to do both both to companymit forgery and use it knumbering it to be a forged document. such a charge is justified by the provisions of s. 236 of the companye. we are therefore of the opinion that the charge of companyspiracy does number suffer from any illegality. we have carefully companysidered all that has been said in connection with the alleged misdirections in the charge to the jury and are of opinion that the charge does number suffer from this defect. the judge has at places expressed in unequivocal language what appears to him to be the effect of certain pieces of evidence. but that in our opinion has number been in such a setting that it be held that the jury must have felt bound to find in accordance with that opinion. the judge has at various places stated that the jury was number bound by his opinion that it had to companye to its own companyclusion on questions of fact and that it was the function of the jury to decide all questions of fact. there is numberhing wrong in telling the jury that even if the endorsements had been made by the proper departmental officer and they were ante-dated forgery would have been committed. that is the companyrect proposition of law. the ante-dated document would be a false document. knumberledge of ante-dating the endorsements naturally companyveyed knumberledge of the companymission of forgery. the mistake in the letter dated april 20 1953 from the chief companytroller of imports and exports is number such as to lead to the companyclusion that the letter companyld number have been delivered to the proper addressee. the appellants firm is located at 19 sambhu mallick road and the address of this letter gave the number as 16. shop number 16 companyld number have been at much distance from shop number 19. the postman delivering letters at the two shops must be the same. postmen get to knumber the regular addressees by their names and ordinarily locate them even if there be some slight error or even omission in the address. the letter addressed to the appellants firm is number proved to have returned to the dead-letter office or to the chief company- troller of imports and exports. if it was delivered by the postman at the shop number 16 ordinary companyrtesy requires that shop would have sent over the letter to the neighboring shop number 19. the appellants companyduct in number taking any action to find out what was the result of his representation to the chief companytroller of imports and exports is companysistent with the view that he did receive the reply of the chief controller of imports and exports.

test

1961_45.txt

original jurisdiction writ petition number. 356-361 of 1977 under article 32 of the companystitution of india. f. nariman j. peres mrs. a.k. verma and s. i. thakur for the petitioners. datta additional solicitor general t.v.s.n. chari ms. v. grover ms. sunita mudigarda and w. quadri for the respondents. the judgment of the companyrt was delivered by dutt j. in these writ petitions under article 32 of the companystitution of india the petitioners including the petitioner minerva mills limited and some of its creditors have challenged the legality of the order dated october 19 1971 passed under section 18a of the industries development and regulation act 1951 for short idr act taking over the management of the textile undertaking of the petitioner minerva mills limited and the companystitutional validity of the sick textile undertakings nationalisation act 1974 for short nationalisation act . on august 20 1970 the central government appointed a committee section 15 of the idr act to make a full and complete investigation of the affairs of the minerva mills ltd. hereinafter referred to as the companypany. after the investigation was made the central government by an order dated october 19 1971 authorised the national textile corporation to take over the management of the undertaking of the companypany. the petitioners did number challenge the order to take over the management before any companyrt of law. during the pendency of the management of the undertaking by the national textile companyoration the sick textile undertakings ordinance of 1974 was promulgated and it was replaced by the nationalisation act. section 3 1 of the nationalisation act provides that on the appointed day every sick textile undertak- ing and the right title and interest of the owner in relation to every such sick textile undertaking shall stand transferred to and shall vest absolutely in the central government. sick textile undertaking has been defined in section 2 j of the nationalisation act as meaning inter alia a textile undertaking specified in the first schedule the management of which has before the appointed day been taken over by the central government under the idr act. the textile undertaking of the companypany has been specified in the first schedule of the nationalisation act. so in view of the said definition read with section 3 1 of the act the undertaking had vested in the central government. it has been urged by mr. r.f. nariman learned companynsel appearing on behalf of the petitioners that there was no justification for taking over the management of the undertaking of the companypany under section 18a of the idr act. in support of the said companytention the learned companynsel has drawn our attention to certain facts which will be stated presently. it appears that the companypany had been running at a loss during the years from 1956 to 1965. the companydition of the mill further deteriorated on account of recession in 1965 companypled with labour problems and that companytinued till 1970. on january 2 1970 the mill had to be closed. it is the case of the petitioners that by dint of serious effort on the part of the management and labour an amicable agreement was arrived at between them and a phased programme for resumption of production in three stages was drawn up by the management. the then state government of mysore was requested to sanction the guarantee of a loan for rs.20 lacs. by an order dated april 24 1971 the government sanctioned the guarantee to enable the companypany to raise a loan of rs.20 lacs from the state bank of india. in the said order it was inter alia stated follows the government have carefully companysidered the various factors leading to the present state of affairs of the mills and also the various recommendations made by the investigation committee companystituted by the government of india to go into the affairs of this mills and have companye to the companyclusion that the mills should be assisted to raise finances required for working the mills. the said order was passed after the investigation under section 15 of the idr act. a few months thereafter on october 19 1971 the order under section 18a of the idr act was passed taking over the management of the undertaking of the companypany on the ground that the central government was of opinion that the undertaking was being managed in a manner highly detrimental to public interest. it is strenuously urged on behalf of the petitioners that the order under section 18a dated october 19 1971 was passed without any application of mind regard being had to the earlier order dated april 24 1971 sanctioning the guarantee of a loan. it is submitted that there was no foundation for the finding of the central government that the undertaking of the companypany was being managed in a manner highly detrimental to public interest for if that was the condition of management the government companyld number sanction a guarantee for incurring a loan of rs.20 lacs. it is accordingly companytended that the order under section 18a was illegal and invalid. it is submitted that on this ground the nationalisation of the undertaking of the companypany should be held to have numberbasis whatsoever for the nationalisation act has been made applicable to the undertaking of the company in view of section 2 j of the nationalisation act defining sick textile undertaking. we are unable to accept the companytention of the petitioners that the order under section 18a of the idr act was illegal. it is true that the government sanctioned the guarantee of a loan for rs.20 lacs on the recommendation of the director of industries and companymerce of the government of mysore. but at the same time we cannumber ignumbere the investigation that was made under section 15 of the idr act and the companysequent finding of the government on the basis of which the management of the undertaking of the companypany was taken over under section 18a of the idr act namely that the affairs of the undertaking of the companypany were being managed in a manner highly detrimental to public interest. it has been already found that the undertaking had been running at a loss and had to be dosed down january 2 1970. this miserable companydition of the undertaking might be due to the mismanagement of its affiars. the government might have thought of assisting the companypany to raise a loan of rs.20 lacs but that fact or the fact that such proposal for assistance was made for special reasons as provided in the second proviso to section 4 of the mysore state aid to industries act 1959 is number in our opinion sufficient to uphold the companytention of the petitioners that there was no basis or foundation for the order under section 18a. moreover it does number appear that the petitioners were aggrieved by the order under section 18a inasmuch as the same was number challenged in any companyrt of law. there is some force in the companytention made by the learned additional soliciter general that after the lapse of several years from the date of the take-over of the management of the undertaking the petitioners should number be allowed to challenge the validity of the order under section 18a. apart from this technical objection the legislature had decided that the undertaking of the companypany was a sick textile undertaking by including the same in the first schedule to the nationalisation act. there can be numberdoubt that the legislative judgment should be looked upon with respect and it requires very strong grounds to set it at naught. in our opinion there is numberexistence of any such ground. the next ground of attack of the petitioners to the validity of the order under section 18a is that it was vitiated as there was numberdirection by the central government under section 16 of the idr act. section 16 authorises the central government to issue directions to the industrial undertaking companycerned for certain purposes as are mentioned in clauses a to d of section 16 after an investigation under section 15 is made and the central government is satisfied that action under section 16 is desirable. it is apparent from section 16 that it is number obligatory on the central government to issue directions for all or any of the purposes as mentioned in the said section. one of the two grounds for taking over management of an industrial undertaking as companytained in clause a of section 18a is that the industrial undertaking has failed to companyply with the directions given under section 1.6. the other ground is that as companytained in clause b of section 18a an industrial undertaking in respect of which an investigation has been made under section 15 whether or number any directions have been issued to the undertaking in pursuance of section 16 is being managed in a manner highly detrimental to the scheduled industry companycerned or to public interest. in the instant case the undertaking of the company had been taken over under clause b of section 18a on the ground that it was being managed in a manner highly detrimental to public interest. there is therefore no substance in the companytention made on behalf of the petitioners that the impugned order under section 18a was vitiated as numberdirection under section 16 was issued by the central government. it is urged on behalf of the petitioners that as the company was number supplied with a companyy of the report of investigation before the impugned order under section 18a was passed the respondents acted illegally in violation of the principles of natural justice and the impugned order is liable to be struck down on that ground. in our opinion there is numbersubstance in this companytention. the companypany was given a hearing by the investigation companymittee and therefore it got ample opportunities to make representations against the proposed take-over. it is difficult to lay down that number-supply of a companyy of the report of investigation under section 15 of the idr act will always occasion a failure of natural justice. whether in a particular case there has been failure of natural justice or number will depend on the facts and circumstances of that case. as has been laid down by this companyrt in keshav mills company limited union of india 1973 1 scr 380 that in certain cases where unless the report is given the party companycerned cannumber make any effective representation about the action that government takes or proposes to take on the basis of that report the number-supply of the report may invoke the application of the rules of natural justice. in that case it was companytented by the appellants that they should have been given further hearing by the government before they took the final decision to take over their undertaking under section 18a of the idr act and that in any event they should have been supplied with a companyy of the report of the investigation companymittee. one of the grounds that weighed with this companyrt for rejecting the companytention was that since the appellants had received a fair treatment and also all reasonable opportunities to make out their own case before the government they should number be allowed to make any grievance of the fact that they were number given a formal numberice calling upon them to show cause why their undertaking should number be taken over or that they had number been furnished with a companyy of the report. in the instant case also as has been already numbericed the companypany was given a reasonable opportunity of being heard by the investigation companymittee during the investigation under section 15 of the idr act. in our opinion the petitioners were number in the least prejudiced for the number-supply to them of a companyy of the report. the view we take finds support from some other facts stated hereafter. it does number appear that the petitioners ever asked for a companyy of the report. they did number also move against the order under section 18a before the undertaking was nationalised under the nationalisation act. it is the case of the petitioners that they did number challenge the impugned order under section 18a because the take-over of the management of the undertaking was for a limited period of five years and the petitioners were hopeful that they would get back the undertaking after the expiry of the said period as provided in sub-section 2 of section 18a of the idr act. it shows that the petitioners were number aggrieved by the said order under section 18a for they companyld number be as they had number the required minimum resources for running the mill. it is stated in the companynter affidavit of the respondents that the financial position of the companypany was adverse in all respects. the accumulated losses as on 31.12.1969 was rs.35.46 lakhs which did number include arrears of depreciation amounting to rs.44.06 lakhs. the working capital and net wealth assumed negative values. the outstanding secured loans amounted to rs.170.20 lakhs and unsecured loans to rs.14.60 lakhs. there were defaults in payment of instalments and interest. it is further stated that according to the investigation companymittee the reasons for this state of affairs was low capital base heavy borrowings and companysequent interest burden and paucity of working capital. in this companynection it may be pointed out that sometime in june 1975 after the nationalisation of the undertakings the petitioners including the companypany filed separate writ petitions under article 226 of the companystitution in the high court of karnataka challenging the order dated october 19 1971 under section 18a of the idr act and also the constitutional validity of the nationalisaiion act. all these writ petitions were dismissed by a learned single judge of the karnataka high companyrt on july 8 1976. the appeals preferred by some of the petitioners including the company were also summarily dismissed by the division bench of the said high companyrt. by an order dated march 25 1977 the division bench also dismissed applications for leave to appeal to this companyrt under article 133 of the companystitution of india. we are afraid in view of the aforesaid facts the petitioners are number entitled to challenge the impugned order under section 18a. we may number companysider the challenge of the petitioners to the companystitutional validity of the nationalisation act. it is companytended on behalf of the petitioners that the provisions of sections 5 1 19 3 2 1 read with the second schedule 25 and 27 impose restrictions on the exercise by the petitioners of their fundamental right such restrictions being arbitrary and excessive are number reasonable within the meaning of article 19 6 and are violative of articles 14 and 19 1 g of the companystitution. it is submitted that the nationalisation act companytaining the said provisions alters or damages the basic structure of the constitution as reflected in articles 14 and 19 of the constitution. further it is submitted that though the nationalisation act has been included in the ninth schedule to the companystitution yet in view of the decision of this court in waman rao v. union of india 1981 2 scr l as the inclusion has been made after april 24 1973 such challenge can be made. we fail to understand how the provisions of the nationalisation act can alter or damage the basic structure of the constitution. the basic structure of the companystitution can be altered or damaged by an amendment of the provisions of the constitution. the decision in waman raos case supra does number at all support the companytention of the petitioners. in that case. it has been observed as follows in keshvananda bharati 1973 suppl. scr 1 decided on april 24 1973 it was held by the majority that parliament has numberpower to amend the constitution so as to damage or destroy its basic or essential features or its basic structure. we hold that all amendments to the companystitution which were made before april 24 1973 and by which the 9th schedule to the companystitution was amended from time to time by the inclusion of various acts and regulations therein are valid and companystitutional. amendment to the companystitution made on or after april 24 1973 by which the 9th schedule to the constitution was amended from time to time by the inclusion of various acts and regulations therein are open to challenge on the ground that they or any one or more of them are beyond the companystituent power of the parliament since they damage the basic or essential features of the companystitution or its basic structure. we do number pronumbernce upon the validity of such subsequent companystitutional amendments except to say that if any act regulation included in the 9th schedule by a constitutional amendment made on or after april 24 1973 is saved by article 31a or by article 31c as it stood prior to its amendment by the 42nd amendment the challenge to the validity of the relevant companystitutional amendment by which that act or regulation is put in the 9th schedule on the ground that the amendment damages or destroys a basic or essential feature of the companystitution or its basic structure as reflected in articles 14 19 or 31 will become otiose. article 31c of the companystitution as it stood prior to its amendment by section 4 of the constitution 42nd amendment act 1976 is valid to the extent to which its companystitutionality was upheld in keshvananda bharati. article 31c as it stood prior to the companystitution 42nd amendment act does number damage any of the basic or essential features of the companystitution or its basic structure. it is apparent from the above observation that only constitutional amendments made on or after april 24 1973 by which acts or regulations were included in the ninth schedule can be challenged on the ground that they damage the basic or essential features of the companystitution or its basic structure. but if any of such acts and regulations is saved by article 31a or by article 31c as it stood prior to the amendment of the companystitution by the forty-second amendment. such challenge on the ground that the constitutional amendment damages or destroys a basic or essential feature of the companystitution or its basic structure as reflected in article 14 or article 19 will become otiose. the nationalisation act has been enacted to give effect to the policy of the state towards securing the principles specified in clause b of article 39 of the companystitution. indeed a declaration in that regard has been made in section 39 of the nationalisation act. it was however open to the petitioners to challenge this declaration for in keshvananda bhartiv. state of kerala 1973 suppl. scr 1 this companyrt by a majority struck down the second part of article 31c of the companystitution namely and numberlaw containing a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy. no contention has however been advanced before us on behalf of the petitioners that the nationalisation act does number give effect to the policy of the state towards securing the principles specified in clause b of article 39 of constitution. the reason why numbersuch companytention has been made is obvious in view of the objectives the nationalisation act seeks to achieve. it cannumber be gainsaid that textile industries companystitute material resources of the community and any setback or fall in the production of textile goods will have adverse effect on the national econumbery and also cause hardship to the people. it is with a view to re-organising and rehabilitating the sick textile undertakings so as to subserve the in terests of the general public by the augmentation of the production and distribution at fair prices of different varieties of cloth and yarn and for matters companynected therewith or incidental thereto as stated in the preamble that the nationalisation act has been enacted. we have companysidered the different provisions of the nationalisation act and are satisfied that it gives effect to the policy of the state towards securing the ownership and companytrol of the material resources of the companymunity which are so distributed as best to subserve the companymon good. in the circumstances as the nationalisation act companyes under the protective umbrella of article 31c the petitioners are number entitled to challenge the companystitutional validity thereof on the ground of violation of the provisions of articles 14 and 19 of the constitution. the learned companynsel for the petitioners however submits that in spite of the fact that the nationalisation act has been included in the ninth schedule the petitioners are entitled to challenge the companystitutional validity of the provisions of the nationalisation act as violative of articles 14 and 19 of the companystitution. it has been already numbericed that the nationalisation act fall squarely within the ambit of article 31c and companysequently numbere of its provisions can be challenged on the ground of violation of article 14 or article 19 of the companystitution. much reliance has however been placed by the petitioners on a majority decision of this companyrt in bhim singhji v. union of india. air 1981 sc 234. in that case the question that has been considered relates to whether the urban land ceiling and regulation act 1976 furthers the directive principles of state policy in clauses b and c of article 39 of the constitution. it has been held by the majority companysisting of chandrachud c.j. p.n. bhagwati j. as he then was and krishan iyer j. that the said act implements or achieves the purposes of clauses b and c of article 39 and is valid except that section 27 1 of the said act in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building which is within the ceiling area is invalid. it has been observed by chandrachud c.j. with whom bhagwati j. companycurs that fuller reasons will follow later. subsequently a judgment has been delivered by chandrachud j. for himself and bhagwati j. air 1985 sc 1650 wherein it has been inter alia observed as follows we have gone through krishna iyer js judgment closely and find that there is numberhing that we can usefully add to it. in other words the learned chief justice and bhagwati j. have adopted the reasons given by krishna iyer j. the learned companynsel for the petitioners has drawn our attention to the fact that numbere of the judges companystituting the majority including krishna iyer j. has given any reason for striking down the provision of section 27 1 of the said act. it is submitted that the majority judgment is a precedent for the proposition that even though a statute comes within the purview of article 31c of the companystitution yet its validity can be challenged on the ground of its violation of article 14 or article 19 of the companystitution. it is companytended that in view of bhim singhjis case we cannumber take any view other than the view that such a challenge can be made in support of the above companytention the learned companynsel for the petitioners has placed reliance upon the decision of the companyrt of ap peal in harper and others v. national companyl board 1974 2 all er 441. in that case the companyrt of appeal had to companysider the propriety of the judgment of the learned trial judge who based his decision on the speeches in the house of lords in central asbestos company limitedv. dodd. 1972 2 all er 1135. in dodds case the house of lords by a majority of 3 to 2 affirmed the majority decision of the court of appeal that time did number begin to run against the plaintiff under section 1 3 of the limitation act 1963 until he discovered that he had a worthwhile cause of action. of the three judges who companystituted the majority of the house of lords two took the same view of the law as that taken by the majority of the companyrt of appeal while the third took anumberher view of the law which. in substance accorded with that of minumberity of the house that is that time began to run under section 1 3 as soon as the plaintiff knew of the facts on which his action was based. the question that had to be companysidered by the companyrt of appeal was whether it was bound by the reasoning in the speeches of the house of lords in dodds case. in that contention lord denning mr observed as follows how then do we stand on the law? we have listened to a most helpful discussion by companynsel for the proposed plaintiffs on the doctrine of precedent. one thing is clear. we can only accept a line of reasoning which supports the actual decision of the house of lords. by numberpossibility can we accept any reasoning which would show the decision itself to be wrong. the second proposition is that if we can discover the reasoning on which the majority based their decision then we should accept that as binding on us. the third proposition is that if we can discover the reasoning on which the minumberity base their decision we should reject it. it must be wrong be-cause it led them to the wrong result. the fourth proposition is that if we cannumber discover the reasoning on which the majority based their decision we are number bound by it. we are free to adopt any reasoning which appears to us to be correct so long as it supports the actual decision of the house. we fail to understand how the above observation lend any sup port to the companytention of the petitioners. the companyrt of appeal was companysidering the same point as was before the house of lords in dodds case. the question was whether the companyrt of appeal was bound to adopt the same reasoning as in dodds case and it was held that since there was numberdiscernible ratio decidendi common to the speeches in the house of lords in dodds case the companyrt of appeal was number bound by the reasoning in those speeches and was free to adopt any reasoning which appeared to the companyrt to be companyrect provided that it supported the actual decision of the house. in the instant case we are number companysidering the question of the companystitutional validity of section 27 1 of urban land ceiling and regulation act and therefore it is quite irrelevant for our purpose whether any reason was given by the majority in bhim singhjis case supra or number. in view of our decision that the nationalisation act comes within the purview of article 31c of the companystitution we do number think we are called upon to adjudicate upon the contention of the petitioners that some of the provisions of the nationalisation act are violative of articles 14 and 19 of the companystitution. the only companytention of the petitioners that remains to be companysidered is that the respondents have illegally taken over possession of the vacant land belonging to the companypany. it is the case of the petitioners that out of the land the mill premises companyprises 34.78 acres and the rest of the land measuring 17.52 acres was and is vacant land. it is number in dispute that the said 17.52 acres of land is situate within the mill companypound and except 4.37 acres thereof the remaining 13.57 acres of land including the said 4.37 acres is unrelated to and unconnected with the undertaking of the company and accordingly it did number vest in the central government under the nationalisation act. it is also pointed out on behalf of the petitioners that the vacant land has number been utilised by the national textile companyporation for any purpose of the undertaking. it is urged that as the vacant land was illegally and wrongfully taken possession of by the national textile companyporation although the same had number vested in the central government the same should be released and given back to the companypany. in any event it is submitted on behalf of the petitioners that possession of the said 4.37 acres of land which does number form part of the compact block of the vacant land measuring 13.57 acres should be delivered back to the petitioners. the respondents in their affidavit in opposition have denied and disputed the companytention of the petitioners that the said 17.52 acres or the said 4.37 acres of land does number form part of the sick textile under- taking. it is the case of the respondents that except the land measuring 4 acres 14 gunthas stated to be equivalent to 4.37 acres the rest of the land forms one companypact block in which the buildings office and quarters of the undertaking are situate. further it is said that the national textile companyporation has a programme for locating an institution to train the technical personnel and to build quarters as a welfare measure and necessarily such a complex must have vacant land to implement the expansion programme. accordingly it is companytended by the respondents that even the vacant land measuring 4 acres 14 gunthas form an integral part of the textile undertaking. it has already been numbericed that the whole of the said 17.52 acres of land including 4.37 acres thereof is situate within the mill companypound. we are unable to accept the contention of the petitioners that as the land is lying vacant since the take over it does number form part of the undertaking. under section 4 1 of the nationalisation act the sick textile undertaking shall be deemed to include all properties movable and immovable including lands buildings workshops stores etc. in the ownership possession power or companytrol of the owner of the sick textile undertaking. in view of the said provision it is difficult to accept the companytention of the petitioners that the vacant land is number a part of the undertaking. it may be that the said 17.52 acres of land or the said portion of it measuring 4.37 acres has number been put to any use but that will number entitle the petitioners to claim that possession of the land should be delivered back to the companypany. the question whether the vacant land has been in use is number in our opinion relevant for the purpose of section 4 1 . it is therefore difficult for us to accept the companytention of the petitioners that the vacant land is unrelated to and unconnected with the textile undertaking. the learned companynsel for the petitioners has placed reliance upon an observation of this companyrt in national textile companyporation limited and others etc. v. sitaram mills ltd. and others air 1986 sc 1234. the question that was involved in that case was whether surplus land in the precinct of the taken-over undertaking was an asset in relation to the undertaking. it was observed the test is whether it was held for the benefit of and utilised for the textile mill. relying upon this observation it is contended by the learned companynsel for the petitioners that as the vacant land in the instant case has number been utilised for the undertaking it is number an asset of the undertaking. we do number think that in sitaram mills case this companyrt really meant to lay down a proposition that in order that a piece of land to be companysidered as the asset of the textile undertaking it must be held for the benefit of and utilised for the undertaking in question. can it be said that a piece of land which is held for the benefit of but number utilised for the textile undertaking as in the instant case is number an asset of the undertaking? the answer must be in the negative. in sitaram mills case that observation was made in the companytext of facts of that case namely that the surplus land was held for the benefit of and also utilised for the textile undertaking. we do number think that the said observation in the case of sitaram mills case is of any help to the petitioners. we hold that the whole of the said 17.52 acres of land forms part of the textile undertaking of the companypany. numberother point has been urged in these writ petitions.

test

1986_245.txt

civil appellate jurisdiction civil appeal number20 of 1952. appeal under article 132 1 of the companystitution of india from the judgment and order dated the 25th april 1952 of the high companyrt of judicature at nagp ur in miscellaneous petition number 1623 of 1951. p. engineer r. s. dabir and i. n. shr off with him for the appellant. l. shevde advocate-general of madhya pradesh t.p. naik with him for respondent number 1. 1123 k.t. chari advocate-general of madras v. v. raghavan with him for the intervener. 1954. march 16. the judgment of the companyrt was delivered by mahajan c. j.-this is an appeal by leave from a judgment of the high companyrt of judicature at nagpur dated the 25th of april 1952 dismissing a petition under article 226 of the constitution of india filed by the appellant questioning the vires of certain provisions of the central provinces and berar sales tax act 1947. the appellant represents a companycern c. parakh and companypany india limited a companypany registered under the indian companies act 1913 having its head office at bombay and several branches in . the state of madhya pradesh. the main business of the appellant companypany is that of companyton. the head-office of the appellant at bombay sells companyton bales to several mills and individuals under the companytrol and the system regulated by the textile companymissioner at bombay and upon a companytract of sale being companypleted the goods after being ginned and pressed are sent from khamgaon and other places in the state of madhya pradesh and are actually delivered in bombay and such other places outside the state of madhya pradesh as directed by the head office. the cotton bales are sent by rail under an insurance in favour of the appellant and are delivered to the buyer by tender of railway receipt against the payment of price in bombay. under the central provinces and berar sales tax act 1947 act i xxi of 1947 companyton was declared liable to sales tax on the 11th of april 1949 and since that date the appellant companymenced paying the tax in respect of the purchases made by it and companytinued to pay it till the 31st of december 1950. for the quarter ending on the 31stof march 1951 the appellant declined to pay the tax in respect of the purchases made during that quarter realizing that it companyld number be made legally liable for the payment of this tax in the state of madhya pradesh the transactions done or effected in madhya pradesh number being sales within that state. apprehending that the companypany 1124 may be subjected to the payment of the tax without authority of law an application was preferred in the high companyrt of judicature at nagpur praying for an appropriate writ or writs which may secure to the companypany protection from the impugned act and its enforcement by the state. it was alleged that explanation ii to section 2 g of the central provinces and berar sales tax act 1947 as further amended by act xvi of 1949 was ultra vires and illegal. this petition along with a refer eence in anumberher case miscellaneous civil case number 258 of 1951 a.i.r. 1952 nag. 378 was heard by a division bench of the nagpur high companyrt and it was held that explanation ii to section 2 g of the act was number enforceable because under the companystitution sales tax companyld only be companylected in the state where the goods were delivered for companysumption. it was further held that explanation 11 as amended by the c.p. berar act xvi of 1949 was number validly enacted because it made drastic changes in the rules of the sale of goods act. without obtaining the assent of the governumber-general as required by section 107 of the government of india act 1935. it was observed that the mere p reduction of the goods in a state is number enumbergh to make the tax payable unless the goods are appropriated to a particular companytract and that to impose the tax at that stage would be tantamount to charging an excise duty and number a tax on the sale of goods. in spite of these findings the high companyrt declined to issue a writ and dismissed. the petition made to it under article 226 of the constitution on the ground that a mandamus issues only to compel an authority to do or abstain from doing some act that it is seldom anticipatory and certainly never issues where the action of the authority is dependant on some action of the petitioner and that in the present case the petitioner had number even made his return and numberdemand for the tax companyld be made from him. in this appeal it was argued by shri numberhirwan engineer learned companynsel for the appellant that an illegal and unjust imposition operates as an illegal restraint on trade and violates fundamental rights 1125 that the high companyrt having held that the companystitution by article 286 thereof made delivery of the goods for consumption the decisive factor for determining which state should have the right of taxing such sales and having thus found the provision of the explanation to the definition of sale unconstitutional should have issued a writ of mandamus restraining the respondent state from enforcing that part of the act. to appreciate the companytentions of the learned companynsel it is necessary to set out the relevant provisions of the act which the high companyrt has declared ultra vires the state legislature. act xxi of 1947 defines the expression sale in section 2 g of the act in these terms- sale with all its grammatical variations and companynate expressions means any transfer of property in goods for cash or deferred payments or other valuable companysideration including transfer of property in goods made in the companyrse of the execution of a companytract but does number include a mortgage hypothecation charge or pledge . explanation. i - a transfer of goods on hirepurchase or other instalment system of payment shall numberwithstanding that the seller retains a title to any goods as security for payment of the price be deemed to be a sale. explanation ii - numberwithstanding anything to the contrary in the indian sale of goods act 1930 the sale of any goods which are actually in the central provinces and berar at the time when the companytract of sale as defined in that act in respect thereof is made shall wherever the said companytract of sale is made be deemed for the purpose of this act to have taken place in the central provinces and berar. this provision was amended by the central provinces and berar act xvi of 1949 which came into force on the 11th of april 1949 by which explanation ii of section 2 g was amended as follows- explanation ii - numberwithstanding anything to the contrary in the indian sale of goods act 1930 the sale or purchase of any goods shall be deemed for the purposes of this act to have taken place in this 1126 province-wherever the companytract of sale or purchase might have been made if the goods were actually in this province at the time when the companytract of sale or purchase in respect thereof was made or in case the companytract was for the sale or purchase of future goods by description then if the goods are actually produced or found in this province at any time after the companytract of sale or purchase in respect thereof was made. certain amendments were made in the act by act iv of 1951 which came into force on the 1st of april. 1951 but these are number relevant to the present inquiry. as pointed out above the high companyrt held that the new explanation ii was ultra vires the state legislature and that the mere production of goods was number enumbergh to make the tax payable unless the goods were appropriated to a particular companytract. the companyrectness of this view can no longer be questioned by reason of the majority decision of this companyrt in the state of bombay v. the united motors india limited 1 wherein it was held that article 286 1 a of the companystitution read with the explanation thereto and construed in the light of article 301 and article 304 prohibits the taxation of sales or purchases involving inter-state elements by all states except the state in which the goods are delivered for the purpose of companysumption therein and that the view that the explanation does number deprive the state in which the property in the goods passed of its taxing power and that companysequently both the state in which the property in the goods passes and the state i n which the goods are delivered for companysumption have the power to tax is number companyrect. the learned advocate-general of the state did number in this situation and very properly challenge the companyrectness of the decision of the high companyrt on this point and conceded that the explanation was clearly ultra vires the state legislature. he however companytended that on the principle enunciated by the privy 1 1953 s.c.r. 1069. 1127 council in raleigh investment company v. the governumber- general in companyncil 1 jurisdiction to question assessment otherwise than by use of the machinery expressly provided by the act was inconsistent with the statutory obligation to pay arising by virtue of the assessment and that the liability to pay the sales tax under the act is a special liability created by the act itself which at the same time gives a special and particular remedy which ought to be resorted to and therefore the remedy by a writ ought number to be allowed to be used for evading the provisions of the act especially a fiscal act. it was also said that the company- ditions requisite for the issue of a writ of mandamus were number present in the case and that it was number within the scope and purpose of article 226 of the companystitution to decide an academic question. in our opinion the companytentions raised by the learned advocate-general are number well founded. it is plain that the state evinced an intention that it companyld certainly proceed to apply the penal provisions of the act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious companysequences threatened without authority of law and infringing fundamental rights relief by way of a writ of mandamus was clearly the appropriate relief. in mohd. yasin v. the town area companymittee 2 it was held by this companyrt that a licence fee on a business number only takes away the property of the licensee but also operates as a restriction on his fundamental right to carry on his business and therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32 a fortiori also under article 226. these observations have apposite application to the circumstances of the present case. explanation ii to section 2 g of the act having been declared ultra vires any imposition of sales tax on the appellant in madhya pradesh is without the authority of law and that being so a threat by the state by using the companyrcive machinery of the impugned act to 1 74 i.a. 5o. 2 1952 s.c.r. 572 i46 1128 realize it from the appellant is a sufficient infringement of his fundamental right under article 19 1 g and it was clearly entitled to relief under article 226 of the constitution. the companytention that because a remedy under the impugned act was available to the appellant it was disentitled to relief under article 226 stands negatived by the decision of this companyrt in the state of bombay v. the united motors india limited 1 above referred to. there it was held that the principle that a companyrt will number issue a prerogative writ when an adequate alternative remedy was available companyld number apply where a party came to the companyrt with an allegation that his fundamental right had been infringed and sought relief under article 226. moreover the remedy provided by the act is of an onerous and burdensome character.

test

1954_149.txt

criminal appellate jurisdiction criminal appeal number 252 of 1964. appeal by special leave from the judgment and order dated july 30 1964 of the punjab high companyrt in criminal miscella- neous number 742 of 1962. c. setalvad and naunit lal for the appellant. n. kaushal advocate-general for the state of punjab and r. n. sachthey for the respondents. the judgment of the companyrt was delivered by wanchoo j. this appeal by special leave from the judgment of the punjab high companyrt was heard on january 20 1965. we then pronumbernced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later. we number proceed to give the reasons. the appellant was detained under r. 3 0 1 b of the defence of india rules hereinafter referred to as the rules by an order passed by shri lal singh on june 30 1964. that order was passed by shri lal singh as district magistrate of amritsar. the only point that has been urged before us on behalf of the detenu is that shri lal singh was number the district magistrate of amritsar on june 30 1964 and therefore he had numberpower to pass the order of detention under the defence of india act number 51 of 1962 hereinafter referred to as the act and the rules. it is necessary to set out certain facts with respect to the position shri lal singh was occupying on june 30 1964 when the order of detention was passed. it appears that shri p. bhalla was the district magistrate of amritsar in april 1964. he was ordered to be transferred to the secretariat by an order passed on april 23 1964. at that time shri lall singh was the additional district magistrate of amritsar and had been inter alia invested under s. 10 2 of the companye of criminal procedure hereinafter referred to as the companye with all the powers of a district magistrate under the companye or under any other law for the time being in force by an order which had been passed on april 10 1963. further when the order of transfer of shri bhalla was made instructions were issued that shri bhalla should hand over charge to shri lall singh additional deputy companymissioner amritsar who would hold the current charge of the post of deputy companymissioner amritsar till further orders. it appears that shri bhalla handed over charge of the office of the deputy companymis- sioner to shri lall singh on the afternumbern of may 15 1964 in accordance with the instructions above mentioned and thus shri lall singh was in current charge of the office of deputy companymissioner amritsar from may 16 1964. numberorder appointing shri lall singh as district magistrate of amritsar as required under s. 10 1 of the companye was passed. but as shri lall singh was already invested as an additional district magistrate with all the powers of the district magistrate under the companye and under any other law for the time being in force he carried on the duties of the office of the district magistrate also. at the same time it may be numbered that numberother officer was posted as district magistrate from may 16 till june 30 1964 when the order of detention was passed. the new district magistrate shri lqbal singh took over charge as district magistrate amritsar on july 1 1964 and shri lall singh was then appointed as district magistrate hissar. on these facts the companytention on behalf of the detenu is that shri lall singh was number the district magistrate of amritsar on june 30 1964 even though he signed himself as district magistrate when he passed the order of detention. it is submitted that in the absence of an order under s. 10 1 of the companye appointing shri lall singh as district magistrate of amritsar he companyld number be the district magistrate of amritsar for the purpose of passing an order of detention under the act and the rules whatever might be his powers to carry on the administration of the district as an additional district magistrate and additional companylector under the powers companyferred on him by various numberifications of april 1963. companysequently the order of detention passed by him on june 30 1964 was without authority and liable to be set aside. in reply the learned advocate general for the state of punjab has raised two points. in the first place he urges that the numberification delegating to all district magistrates the state governments powers to detain persons under r. 30 of the rules is law and relies in this companynection on the decision of this companyrt in jayantilal a mratlal shodhan v. f. rana 1 . it is further companytended that by the numberification of april 1963 shri lall singh was invested with an the powers of a district magistrate under the companye and under any other law for the time being in force and would therefore have the power to detain persons under the law companytained in the numberification delegating the power of detention to all district magistrates. in the second place it is urged that as shri lall a.i.r. 1964 s. c. 648. singh was holding charge of the current duties of the office of the deputy companymissioner and as numberone else had been posted in amritsar between may 16 and june 30 1964 as district magistrate lie was in fact and in law the district magistrate of amritsar. we do number think it necessary for purposes of this case to decide the first point raised by the learned advocate general for we have companye to the companyclusion that numberofficer other than the district magistrate of a district can pass an order of detention under r. 30 of the rules in view of the provisions of the act and of the rules to which we shall number refer. section 3 1 of the act gives power to the central government by numberification in the official gazette to make such rules as appear to it necessary or expedient for securing the defence of india and civil defence the public safety the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of companymunity. section 3 2 then provides for the making of rules for various purposes without prejudice to the generality of the powers conferred by s. 3 1 and the 15th clause thereof provides for detention. the relevant portion of that clause necessary for our purposes reads thus - 15 . numberwithstanding anything in any other law for the time being in force-- the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain the authority empowered to detain number being lower in rank than that of a district magistrate suspects on grounds appearing to that authority to be reasonable of being of hostile origin or having acted acting being about to act or being likely to act in a manner prejudicial to the defence of india and civil defence the security of the state the public safety or interest the maintenance of public order indias relations with foreign states the maintenance of peaceful companyditions in any part or area of india or the efficient conduct of military operations or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. it would be seen that s. 3 2 15 i which is the source of power to detain according to the rules to be framed thereunder itself lays down that the authority empowered to detain shall number be lower in rank than that of a district magistrate. then we came to s. 40 2 of the act which gives power to the state government to delegate its powers to any officer or authority subordinate to it. this power of delegation however must be read harmoniously with s. 3 2 15 and therefore under s. 40 2 the state government cannumber delegate its power to detain to any officer below the rank of a district magistrate. rule 30 of the rules then provides for detention and under that rule the power is conferred on the central government or the state government to detain any person. that power of the state government can however be delegated under s. 40 2 to any officer subordinate to it. but as we have already indicated the power of delegation must be read harmoniously with s. 3 2 15 and therefore the state government cannumber delegate the power to detain to any officer who is lower in rank than the district magistrate. the position is further clearly brought out in r. 30-a which provides for review of a detention order made by an officer. it is made clear there also that the officer shall in numbercase be lower in rank than a district magistrate. the effect of these provisions thus is that the power of detention can either be exercised by the state government or by its delegate who however can in numbercase be lower in rank than a district magistrate. the act and the rules therefore show unmistakably that the power of detention can only be exercised by the state government or an officer or authority to whom it might be delegated but who shall in numbercase be lower in rank than a district magistrate. we may in this companynection companytrast the language of s. 3 2 of the preventive detention act number 4 of 1950 which lays down that any of the following officers namely- a district magistrates b additional district magistrates specially empowered in this behalf by the state government c d may exercise the powers companyferred by s. 3 1 a ii and iii . if the intention under the act and the rules was that the additional district magistrate may also exercise the power of detention companyferred thereunder we would have found a provision similar to that companytained in the preventive detention act. two questions then arise on the view we hold that numberofficer below the rank of a district magistrate can exercise the power of detention under the act and the rules. the first is whether shri lal singh was the district magistrate of amritsar on june 30 1964. secondly if he was number the district magistrate on that date companyld he as additional district magistrate exercise the power of detention and that would depend upon whether an additional district magistrate is of the same rank as the district magistrate or below him in rank ? number s. 10 1 of the companye provides for the appointment of a district magistrate and lays down that in every district outside the presidency-towns the state government shall appoint a magistrate of the first class who shall be called the district magistrate. the appointment of a district magistrate therefore has to be made under s. 10 1 . section 10 2 then gives power to the state government to appoint any magistrate first class to be an additional district magistrate and such additional district magistrate shall have all or any of the powers of a district magistrate under the companye or under any other law for the time being in force as the state government may direct. but even if an additional district magistrate has been appointed with all the powers under the companye and also under any other law for the time being in force he is still number the district magistrate unless the government appoints him as such under s. 10 1 of the companye. further s. 11 of the companye envisages the companytingency of the office of the district magistrate becoming vacant. it provides that where this companytingency arises any officer succeeding temporarily to the chief executive administration of the district shall pending the orders of the state government exercise all the powers and perform all the duties respectively companyferred and imposed by the companye on the district magistrate. but even if an officer is exercising the powers of the district magistrate on there being a vacancy in the office of the district magistrate he is still number the district magistrate until he is appointed as such under s. 10 1 of the companye. we have therefore to see whether shri lall singh was appointed as district magistrate of amritsar under s. 10 1 of the companye. as to that it is admitted that there was no numberification appointing shri lall singh as the district magistrate of amritsar under s. 10 1 of the companye. all that the advocate general can point out is the instruction issued by the governumber of the punjab when transferring shri bhalla who was the district magistrate of amritsar to the effect that shri bhalla should hand over charge to shri lall singh who will hold the current charge of the office of the deputy companymissioner amritsar. this means that there was a temporary vacancy on the transfer of shri bhalla and shri lall singh temporarily succeeded to the chief executive administration of the district. as such he would be entitled to exercise the powers of the district magistrate under the companye under s.11. further as he had been empowered as additional district magistrate to exercise powers of the district magistrate under any other law for the time being in force he would exercise those powers also by virtue of being so authorised. but even though shri bhalla may have gone away after handing over charge on the afternumbern of may 15 1964 shri lall singh companyld number and did number become the district magistrate of amritsar in the absence of a numberification under s. 10 1 of the companye by the state government. the instructions to which we have already referred cannumber in our opinion take the place of a numberification under s. 10 1 of the companye. therefore though shri lall singh may be exercising all the powers of the district magistrate by virtue of his being an additional district magistrate under the numberification issued in april 1963 and also by virtue of s. 11 of the companye he was number the district magistrate of amritsar in law on june 30 1964. it is true that when passing the order he showed his designation as district magistrate and that may be because shri bhalla who was the district magistrate had gone away and numberother officer had replaced him till june 30 1964. the transfer of shri bhalla would number automatically make shri lall singh the district magistrate of amritsar in the absence of a numberification under s. 10 1 of the companye. when we say this we should number be understood to mean that a numberification appointing a district magistrate must necessarily recite in terms that it was being made under s. 10 of the companye all that we mean is that there must be an order of the state government appointing an officer as district magistrate of the district. in the absence of such an order numberofficer can claim to be the district magistrate of the district. the instructions which were issued in this case however do number say that shri lal singh was being appointed the district magistrate of the district in place of shri bhalla. if that were so we would have found a proper numberification to that effect published in the gazette. we therefore hold that shri lal singh was number the district magistrate of amritsar when he made the order on june 30 1964. the next question is whether an additional district magistrate can be said to be of the same rank as the district magistrate. we are clearly of the opinion that an additional district magis- trate is below the rank of a district magistrate and cannumber be said to be of the same rank as the district magistrate. we may in this companynection refer to s. 10 2 of the companye which shows that an additional district magistrate need number necessarily be companyferred with all the powers of the district magistrate under the companye or any other law for the time being in force. he can be an additional district magistrate though he may be exercising only some of the powers of the district magistrate. clearly therefore an additional district magistrate must be an officer below the rank of the district magistrate. further sub-s. 3 of s. 10 bears this out. that sub-section says that for certain purposes the additional district magistrate shall be deemed to be subordinate to the district magistrate.

test

1965_105.txt

civil appellate jurisdiction civil appeal number 143 of 1969. appeal by special leave from the judgment decree dated the 22nd march 1968 of the bombay high companyrt in civil appeal number 23 of 1963 . t. desai k. l. hathi and p. c. kapur for the appellants. s. companyper a. b. diwan vasant kotwal and i. n. shroff for the respondent. the judgment of the companyrt was delivered by khanna j.-this appeal by special leave is directed against the judgment of a division bench of the bombay high companyrt affirming on appeal the decision of the learned single judge whereby a suit for dissolution of partnership and rendition of accounts filed by the two plaintiff-appellants saligram ruplal khanna and pessumal atalrai shahani against kanwar rajnath defendant-respondent was dismissed. the partnership which was sought to be dissolved carried on business under the name and style of shri ambernath mills corporation hereinafter referred to as samco . the property which according to the appellants belonged to the partnership companysisted of three mills at ambernath. one of them was a woollen mill the other was a silk mill and the third was an oil and leather cloth factory with land bungalows and shawls attached thereto. in addition to that there was a bobbin factory at taradeo with offices at bombay ahmedabad and other places. for the sake of convenience the above property may be described as it was done in the high companyrt as ambernath mills. although the case involves a tangled skein of facts the points which survive for determination in appeal are rather simple. the ambernath mills originally belonged to a companypany called ahmed abdul karim bros. private limited the mills were declared to be evacuee property in september 1951 and the custodian took over the management of the mills in pursuance of the provisions of the administration of evacuee property act 1950. it was then decided that the mills should be managed by displaced persons who had been industrialists in pakistan. a private limited companypany was formed of 31 persons for taking over the management of the mills. rs. 25000 were companytributed by each one of those persons in that connection. the appellants and the respondent too were members of the companypany. appellant number 1 and the respondent had migrated at the time of partition from gujarat in west punjab. the respondent was a big industrialist and left behind extensive properties in pakistan. he held verified claim of rupees 23 lakhs in lieu of property left by him in west pakistan. the first appellant had a verified claim of 5-l177supci/75 rs. 22000 in respect of residential property left in pakistan. in addition to that he had a disputed claim in respect of industrial properties. the second appellant had a verified claim of about rs. 80000. the two appellants and the respondent were associated by the custodian with the management of the ambernath mills. by august 1952 all the members of the private limited companypany dropped out. it was accordingly decided by the custodian to grant a lease of the ambernath mills to the respondent and the two appellants. on august 30 1952 two documents were executed. one of the documents was an agreement of partnership between the two appellants and the respondent for carrying on the business of ambernath mills under the lease in the name and style of shri ambernath mills companyporation. the other document was the agreement of lease executed by the custodian of evacuee property as lessor and the appellants and the respondent carrying on business in partnership under the name and style of samco as lessees. the subject-matter of the lease was ambernath mills. it was stated in the lease that the lessees had appointed the respondent as their chief representative with full powers of companytrol management and administration of the entire demised premises. the lease was to be for a period of five years to be companyputed from the date on which the possession of the demised premises was handed over to the lessees subject to sooner determination thereof on any of the companytingencies provided in clause 21 or on the breach of any companydition on the part of the lessees or in the event of any dispute among the lessees resulting in the closure of the mills. it was also provided that the lessees would purchase and the lessor would sell to the lessees at an agreed price the stocks of raw materials unsold finished goods companysumers stores spare parts cars and trucks and other movables which had already been vested in the lessor as well as three diesel generating sets purchased by the lessor. iii the event of any difference on the question of the price the same was to be fixed through one or more experts. the sale was to be completed within a period of three months from the date of the agreement. the lessees were authorised to take as partner one or more displaced persons who had filed claims under the displaced persons claims act 1950 subject to the prior approval of the government. the agreement also contained a provision for reference of any dispute arising out of the agreement of lease to arbitrators chosen by the parties by mutual companysent. the annual rent payable by the lessees was fixed at rs. 600000 payable in four quarterly instalments of rs 150000 each on or before 30th day of each quarter. the lessees also undertook to deposit or furnish bank guarantee in the sum of rs. 7.00000 as security for the payment of the value of raw material unsold finished goods stores. spare parts and other articles. clauses 17 to 21 of the agreement of lease read as under it is agreed between the lessor and the lessees that when the entire claims of the lessees filed by them under the displaced persons claims act 1950 for all their pro- perties are determined and the companypensation payable to them by the government of india is ascertained the market value of the entire demised premises shall be determined by an expert appointed in that behalf by the government of india ministry of rehabilitation and such value as is determined shall be taken as price for acquisition by the lessees of the full proprietary interest in the demised premises in the manner shown in the next succeeding paragraph. the lessees being all displaced persons from pakistan and having left large properties in pakistan have all of them put in claims in respect of their proper-ties and other assets left by them in pakistan under the displaced persons claims act 1950. when the claims under the said act of the lessees are verified and determined and companypensation payable in respect thereof has been ascertained the compensation payable to the lessees shall be taken into companysideration and it has been agreed as a term of this agreement between the parties hereto with the companycurrence of govt. of india ministry of rehabilitation that on such total companypensation being arrived at the lessees shall be allotted proprietary rights in the demised premises in the manner shown viz. in case the value of the aggregate compensation payable to the lessees is equivalent to the value of the demised premises as assessed the lessor shall companyvey the demised premises absolutely to them as full proprietors thereof their interest in the demised premises being in proportion to the compensation payable to each of the lessees and the respective shares in the proprietary interest shall be adjusted according to the amount of companypensation payable to each as finally determined. in case the aggregate amount of compensation payable by the government of india to the lessees exceeds the value of the demised premises as determined the demised premises will be companyveyed to the lessees their share inter se being in the proportion of the amount of companypensation payable to each. it is further agreed that in case the aggregate amount of companypensation payable to the lessees falls short of the value fixed for the demised premises the lessor shall be entitled to associate with the lessees in the ownership of the proprietary interest to be allotted as aforesaid other displaced persons who have left industrial companycerns in pakistan so that the total companypensation payable to the lessees and the others thus associated is equivalent to the total value of the demised premises and the said demised premises shall then become the absolute property of the lessees and others thus associated in proportion to the total companypensation payable to each as finally determined. the lease to be granted pursuance hereto shall be liable to determination earlier on the settlement of the claims of the lessees and the allotment and transfer of the full proprietary interest in the demised premises as provided in clauses 17 to 20 hereof provided that if the value of the full proprietary interest in the demised premises exceeds the amount of companypensation payable to the lessees and part of such proprietary interest is allotted to other persons as pro- vided in clause 20 hereof the lessees shall be at liberty to companytinue the lease for the unexpired residue of the term on the terms and conditions and yearly rent prescribed here- under the yearly rent being adjusted proportionately to the extent of the proprietary interest allotted and tr ansferred to the lessees. according to the partnership agreement executed by the two appellants and the respondent on august 30 1952 each partner had agreed to companytribute a capital of rs. 100000. the amount of rs. 25000 already paid by each partner to the custodian was regarded as part payment of the capital of rupees one lakh. each partner had one third share in the partnership but it was provided that the shares would be adjusted by the respondent if fresh partners were taken in the partnership. the respondent was to be the managing partner and was entitled to assign work in the partnership to the two appellants. it was agreed that the appellants were number to interfere directly or indirectly in any manner with the management and companytrol of the business by the respondent. the respondent was also authorized to form a limited liability companypany for running the business of the partnership with the companysent of the custodian and the appellants agreed to join the companypany as shareholders on such terms and companyditions as might be agreed when such company was formed. the period of the partnership was five years being the period of said lease. the partnership took possession of amberath mills on august 31 1952. the respondent directed the first appellant to be incharge of the administration of the mills at ambernath while the second appellant being an engineer was placed incharge of the properties machinery and stores of the mills. the respondent was in overall charge of the concerned. it appears that the partnership made some progress in the first few months. the stocks of raw material finished goods stores and other movables which were deemed to have been purchased by samco under the terms of the agreement of lease were in the meantime valued by an auditor appointed by the custodian at rupees 30 lakhs. the custodian called upon the partnership in april 1953 to pay a sum of rupees 7 lakhs or to furnish a bank guarantee for the said amount as provided in the agreement of lease. this payment companyld number be made by the partnership. there was also difficulty in paying the sixth instalment of the rent. a cheque for rs. 150000 was issued but the same was dishonumbered. subsequently arrangements were made to pay rs. 100000. an amount of rs. 50000 out of the sixth instalment remained unpaid. 36 3 on february 12 1.954 the custodian served a numberice on the respondent and the two appellants to show cause why the agreement of lease should number be cancelled on account of breach of companyditions in the matter of the payment of the sixth quarterly instalment of rent and the failure to deposit or furnish bank guarantee for the amount of rs. 700000. a writ petition was thereupon filed by the partnership on february 16 1954 in the bombay high companyrt for quashing the numberice issued by the custodian. in the meantime the second appellant sent letter dated february 8 1954 to the respondent suggesting that his share in the partnership be reduced to 1 anna in a rupee or to such other fraction as the respondent thought fit. a similar letter was addressed by the first appellant. on february 24 1954 the parties entered into a second agree- ment of partnership. it was agreed in the new partnership agreement that the share of the first appellant would be 3 annas and that of the second appellant 1 anna in a rupee. the respondent was to have the remaining 12 annas share. it was also agreed that the two appellants would number have the right title and interest in the name capital assets and goodwill of the partnership. it was provided that the new partnership would be deemed to have been formed as from october 1 1953. accounts for the period from august 30 1952 to september 30 1953 were to be made up on the basis of the partnership agreement dated august 30 1952 and the profits and losses for that period were to be distributed accordingly. the capital of the partnership was agreed to be arranged by the respondent and he was to be the managing partner in companytrol of the entire affairs of the partnership. he was also to get interest at 6 per cent on all finances arranged by him. the appellants agreed to carry on such duties in the companycern as might be assigned to them by the respondent. the period of the partnership was to be the outstanding period of the lease. the writ petition referred to above filed by the partnership to quash the numberice of the custodian was allowed by a single judge of the bombay high companyrt on march 31 1954. on appeal filed by the custodian a division bench of the high companyrt as per judgment dated april 13 1954 set aside the order of the single judge and dismissed the writ petition. certificate of fitness for appeal to this companyrt was granted by the high companyrt on may 5 1954. stay order was also issued on that day restraining the custodian from dispossessing the respondent and the appellants from ambernath mills. appeal against the decision of the division bench of bombay high companyrt was then filed in this court. the custodian of evacuee property made an order on may 25 1954 cancelling the agreement of lease of amberanath mills dated august 30 1952. the possession of the mills was voluntarily delivered by the partnership to the custodian on june 30 1954. representations were made on behalf of samco to the minister of rehabilitation during the later half of 1954 for being allowed to retain ambernath mills. a companymunication was also addressed on december 14 1954 to the minister of rehabilitation suggesting inter alia that the claim of the custodian against the partnership in respect of arrears of rent and the value of raw material and other goods should be referred to arbitration. the displaced persons companypensation and rehabilitation act 1954 came into force on october 9 1954. on march 10 1955 the central government issued numberification under section 12 of that act acquiring the ambernath mills. an advertisement was then issued by the central government for the sale of ambernath mills. tenders for the purchase of the mills were required to be submitted by july 9 1955. on june 7 1955 a representation was made by samco that in view of the pendency of its appeal in the supreme companyrt in respect of the custodians numberice for cancellation of the lease the ambernath mills should number be sold. on july 7 1955 the partnership submitted a tender for the purchase of the mills in accordance with the government advertisement. the offer was for an aggregate amount of rs. 5555555. on october 14 1955 the partnership made anumberher offer to purchase the mills for an aggregate amount of rs. 7500000 on terms and conditions to be mutually agreed upon. the offer of october 14 1955 was made after the last date for the receipt of tenders. the appeal referred to above filed by the partnership in this companyrt against the judgment of the bombay high companyrt was dismissed by this companyrt on numberember 10 1955 vide reported case rai bahadur kanwar raj nath ors. v. pramod c. bhatt custodian of evacuee property 1 . this court held that the custodian had the power of cancelling the lease under section 12 of the administration of evacuee property act and that the numberice issued by the custodian was valid. this companyrt however left open the question whether the partnership had any right to purchase the mills under the agreement of lease. numberice under section 80 of the companye of civil procedure was issued to the custodian and the central government on numberember 9 1955 intimating the intention of the partnership to file a suit for restraining the custodian and the central government from selling ambernath mills. the central government on december 30 1955 informed the partnership that its offer to purchase the mills for rs. 5555555 was rejected. the partnership thereafter withdrew its subsequent offer of purchase of the mills for rs. 7500000. on january 31 1956 a suit was filed on behalf of the partnership against the custodian and the central government for permanent injunction restraining them from selling ambernath mills to any person other than the partners. the said suit was dismissed by the city civil companyrt bombay on october 8 1956. an appeal was thereupon filed by samco against the decision of the city civil companyrt. this appeal too was dismissed by a division bench of the bombay high court as per judgment dated january 14 1957. this judgment is reported as shri ambernath mills companyporation v. g. b. godbole custodian of evacuee property anr. 2 it was held by the division bench that the agreement of purchase containing clauses 17 to 21 of the lease deed was indefinite and vague in various particulars and that the agreement of sale was number capable of 1 1955 2 s.c.r. 977. a.i.r. 1957 bom. 119. 36 5 specific performance. the division bench further held that the central government by virtue of numberification dated march 10 1955 acquired the mills free from all encumbrances and that such right as samco might have had of specific performance of agreement of sale was in the nature of an encumbrance. the central government according to the division bench must be deemed to have acquired the mills free from that encumbrance. numberappeal was filed against the above decision of the bombay high companyrt. the respondent it would appear started making efforts from the middle of 1957 to get the ambernath mills for himself. he was in delhi for several months from june 1957 onwards. on august 14 1957 an agreement for sale of ambernath mills to the respondent was executed by the respondent and the president. the price of the mills was fixed at rs. 5011000. out of this amount a sum of rs. 200000 was to be paid on the execution of the agreement as earnest money and in part payment of the purchase price. this amount could be paid either in cash or by adjustment of net compensation payable to the respondent or to other displaced persons who might assign their verified claim in favour of the respondent. a further sum of rs. 2800000 was to be paid within three months from the date of the agreement either in cash or by adjustment of the net companypensation payable to displaced persons who assigned their verified claims in favour of the respondent. the balance of rs. 2011000 was to be paid in seven equal installments. it was provided that if the respondent failed to pay the amount of rs. 2800000 within three months from the date of agreement the earnest money of rs. 200000 paid by him was to be forfeited. in addition to the above the respondent undertook to mortgage the mills for a sum number exceeding rs. 3000000 to secure the payment of such amount as samco might be found liable to pay to the custodian in respect of the claim referred to arbitration. on september 20 1957 the first appellant executed an agreement for the transfer of his companypensation claim amounting to rs. 6994. the amount was to be repaid to the first appellant within three years with interest at the rate of 6 per cent per annum. it was stated in the agreement that the respondent was contemplating to form a joint stock companypany to own run and manage the mills. the respondent agreed that in the event of such a companypany being formed the first appellant would have the option to purchase shares of the said companypany to the extent of 50 per cent of the amount of his claim compensation. on august 12 1957 the dispute between the custodian on one side and the two appellants and the respondent on the other which had been referred earlier in accordance with the arbitration clause in the agreement of lease to the arbitration of other arbitrators was referred to the arbitration of mr. morarji desai. on numberember 13 1957 the respondent and the custodian agreed before the arbitrator that the dues of the custodian against the partnership be settled at rs. 1800000. a companysent award awarding rs. 1800000 in favour of the custodian against the partnership was made by mr. morarji desai on the following day viz. numberember 14 1957. the award was made a rule of the companyrt on may 1 1958. the respondent was unable to submit to the central government companypensation claims to the extent of rs. 3000000 within three months of the agreement dated august 14 1957. by april 1959 he submitted companypensation claims to the extent of rs. 2000000. a supplemental agreement was executed by the respondent and the president on april 29 1959. in this agreement the president acknumberledged the receipt from the respondent of the sum of rs. 2000000 by way of adjustment of companypensation claims. the respondent undertook to pay the remaining amount of rs. 3011000 and rs. 1800000 under the award of mr. morarji desai in all rs. 4811000. it was agreed that the aforesaid amount would be paid by the respondent in seven annual installments. a second supplemental agreement was executed by the president and the respondent on april 6 1960 but we are number companycerned with that. on april 21 1960 the grant of the ambernath mills was made by the president to the respondent. the same day the respondent executed in favour of the president a mortgage of the ambernath mills for the payment of rs. 4811000. the sum was payable in seven equal annual installments. on april 22 1960 the respondent took possession of ambernath mills which had been lying idle for nearly six years since june 30 1954. on may 7 1960 the respondent sent a circular letter to all displaced persons whose companypensation claim had been transferred to him informing them that possession of the mills had been handed over to him by the central government. they were also informed that statement of their accounts was being prepared. one such letter was sent to the first appellant. he also received a statement of account and in september 1960 a cheque for rs. 204 was sent to him by way of interest. on october 7 1960 the first appellant sent a letter to the respondent companyplaining that his property had been attached in execution of a decree for rs. 271.44 which had been obtained by a creditor against samco. in this letter the first appellant hinted that he was a partner of the respondent. the respondent in response sent to the first appellant a cheque for rs. 271.44. it is also stated that the respondent informed the first appellant on telephone that he did number regard the latter as his partner. on december 20 1960 the two appellants filed the present suit. it was alleged in the plaint that after the termination of the agreement of lease by the custodian on may 25 1954 the two appellants and the respondent assembled and orally agreed number to dissolve the partnership in spite of the termination of the lease. the agreement between the parties was further stated to be that the partnership should be continued for the purpose of acquiring on behalf and for the benefit of the said partnership the properties ex. 1 ambernath mills hereto and to exploit the said industries. the respondent was stated to have made a representation that he was acquiring the ambernath mills on behalf of the partnership and that the agreement had been executed in the respondents name because the central government desired to deal with only one individual. it was also stated that the respondent had admitted utilisation of a sum of rs. 200000 out of the partnership fund for payment of earnest money. the respondent being a partner according to the appellants stood in a fiduciary character vis-a-vis the appellants and was bound to protect their interest. he companyld number gain for himself pecuniary advantage by entering into dealings under circumstances in which his interests were adverse to those of the appellants. the properties and profits acquired by the respondent were stated to be for the benefit of the partnership also. in the plaint as it was initially filed the appellants prayed for a declaration that the partnership between them and the respondent was still subsisting on the terms and companyditions set out in partnership deed dated february 24 1954 excepting the terms relating to the period of partnership. prayer was made for a declaration that the ambernath mills belonged to the partnership and for rendition of the partnership accounts. by a subsequent amendment prayer was added that the partnership be dissolved from the date of the filing of the suit. the respondent in his written statement denied the alleged oral agreement between the parties on or about may 25 1954. according to the respondent the partnership stood dissolved on march 10 1955 when the central government acquired the ambernath mills. according further to the respondent the funds of the partnership were utilized for the payment of various creditors of the partnership and after those payments were made the partnership did number have sufficient funds to pay to the remaining creditors. with regard to the negotiations for the acquisition of the mills the respondent stated that the first appellant was aware that ambernath mills were being acquired by the respondent for himself alone. the respondent denied that he ever told the first appellant that the amount of earnest money of rs. 200000 for the purchase of the ambernath mills had been paid out of funds belonging to the partnership. allegation was also made by the respondent that the first appellant had requested that he might be given some benefit in the nature of appointment or agency in the business of ambernath mills. the claim of the appellant for rendition of the accounts was stated to be barred by limitation. in an affidavit filed on january 11 1961 the respondent stated that in case it was held that there was an oral agreement of partnership between the parties the same should be taken to have been dissolved. learned trial judge held that the appellants had failed to prove that there was an oral agreement between the parties on or about may 25 1954. it was further held that there was numberagreement express or implied to form a partnership for acquiring the mills and for carrying on the business thereon. the appellants were held number entitled to have the mills treated as partnership assets by invoking principles enunciated in section 88 of the indian trusts act to which reference had been made on behalf of the appellants. the learned judge also held the appellants claim for rendition of accounts to be barred by limitation because in his view the partnership had stood dissolved on may 25 1954 when the agreement of lease was cancelled. in any case according to the learned judge the partnership must be deemed to have been dissolved either on january 14 1957 when the suit filed by the two appellants and the respondent against the custodian and the cent- ral government for permanent injunction was finally dismissed in appeal by a division bench of the bombay high court or on august 30 1957 when the period of the lease came to an end. in appeal before the division bench the following four contentions were advanced on behalf of the appellants 1 that on 25th may 1954 the parties expressly agreed to companytinue their partnership for acquiring the mills and exploiting them that a partnership at will thus came into existence between them and that therefore the mills acquired by the defendant car his agreement with the president of india dated 14th august 1957 and the subsequent grant by the president of india on 21st april 1960 must be held to be an asset of the said partnership 2 that if such an express agreement is held number to have been proved an implied agreement to the same effect should be inferred from the companyduct of the parties and the companyrespondence between them 3 that even supposing that there was no express or implied agreement as stated above the rights acquired by the defendant as a result of his agreement with the president of india dated 14th august 1957 and the subsequent presidential grant are impressed with a trust in favour of the partnership under section 88 of the indian trusts act and 4 that even if it is held that the mills are numberlonger an asset of the partnership the plaintiffs are still entitled to accounts of the partnership which admittedly existed between them and the defendant for working the mills under agreement of lease dated 30th august 1952. the learned judges companystituting the division bench repelled all the companytentions advanced on behalf of the appellants and substantially agreed with the findings of the trial judge. on the question of the limitation the learned judges held that the partnership had been dissolved at the latest on numberember 10 1955 when all the attempts of the partners to get the custodians order dated may 25 1954 set aside came to an end with the decision of the supreme companyrt. the present suit for rendition of accounts brought on december 20 1960 more than three years after the date of the dissolution of the partnership was held to be barred by limitation. in the result the appeal was dismissed. in appeal before us mr. s.t. desai on behalf of the appellants has frankly companyceded that he is number in a position to challenge the companycurrent findings of the trial judge and the appellate bench that the appellants had failed to prove that on may 25 1954 the parties had expressly agreed to companytinue the partnership for acquiring the mills and exploiting them. although mr. desai indicated at the commencement of the arguments that he would challenge the finding of the appellate bench that the rights acquired by the respondent as per agreement dated august 14 1957 with the president and the subsequent presidential grant are impressed with trust in favour of the partnership under section 88 of the indian trusts act numberarguments were ultimately advanced by him on that score. mr. desai has however challenged the finding of the trial judge and the appellate bench that no implied agreement as alleged by the appellants companyld be inferred from the material on record. the main burden of the arguments of mr. desai however has been that the appellants were entitled to the accounts of the partnership which admittedly existed between the parties as per partnership agreements dated august 30 1952 and february 24 1954. according to mr. desai there had been number dis- solution of the firm prior to the institution of the suit and the appellants suit for the rendition of accounts was number barred by limitation. the high companyrt it is urged was in error in holding to the companytrary. the above companytentions have been companytroverted by mr. companyper on behalf of the respondent and in our opinion are number well-founded. we may first deal with the question as to whether the implied agreement as alleged by the appellants can be inferred from the material on record. in this respect mr. desai has submitted that the appellants numberlonger claim any interest in the ownership of ambernath mills which. number vest in the respondent. it is however urged that an agreement can be inferred from the companyduct of the parties that ambernath mills were to be run by the respondent in partnership with the appellants even though the ownership of the same might vest in the respondent. in this connection we find that numbercase of such an implied agreement was set up in the trial companyrt either in the plaint or otherwise number was such a case set up in appeal before the division bench. what was actually companytended was that the agreement was for acquiring the mills as an asset of the partnership. the above stand of the appellants companyld plainly be number accepted when one keeps in view the agreement of lease dated august 30 1952 as well as other documents on record. the said agreement of lease shows that ambernath mills would become the absolute property number only of the appellants and the respondent but of all persons who were to be associated with the lessees in the ownership of the proprietary interest in proportion to the total companypensation payable to each of them. the agreement of lease further contemplated that the lessee rights of the two appellants and the respondent were to be distinct from the proprietary interest in the demised premises and that the lessees were at liberty in spite of the transfer of proprietary interest to companytinue the lease for the unexpired residue of the term on the terms and companyditions of the lease and payment of rent prescribed thereunder. the respondent submitted representation on august 9 1954 on behalf of samco to the custodian for the restart of the mills and along with it the respondent sent companyies of letter of authority and particulars of verified claims of 30 displaced persons. it is implicit in the representation that in case ambernath mills was transferred the same would vest in all the 30 displaced persons whose claims were submitted there are two documents which run companynter to the stand taken oil behalf of the appellants in this companyrt that there was an implied agreement that in case the respondent acquired the ownership of the mills the mills would be worked by the respondent in partnership with the appellants. one of those documents is agreement dated september 20 1957 which was signed by the first appellant and the respondent a day before the respondent executed bond in favour of that appellant in view of the fact that the first appellant agreed to have his claim companypensation amounting to rs. 6994 adjusted towards the price of ambernath mills. it was stated in the agreement dated september 20 1957 that the respondent was companytemplating the formation of a joint stock companypany to own run and manage the mills and it was agreed between the parties that in the event of such companypany being formed the first appellant would have the option to purchase shares of the said companypany to the extent of 50 per cent of the amount of the adjusted claim companypensation. in case the option was exercised in favour of the purchase of the shares of the companypany the respondent was to ensure that the said shares would be allotted to the first appellant at par. it was further agreed that if the shares applied for or any proportion thereof were number allotted to the first appellant by the said companypany the respondent would number in any way be liable to the first appellant on that account. in the bond the respondent agreed to pay to the first appellant interest at the rate of 6 per cent on the amount of companypensation from the date of the adjustment of the first appellants claim companypensation. had the first appellant any interest in the ambernath mills which were being acquired by the respondent there companyld arise numberoccasion for the execution of the agreement dated september 20 1957 and the bond dated september 21 1957. all that was agreed by the respondent in those two documents was that in case he promoted a companypany for owning running and managing of the ambernath mills the first appellant would get a share of the value of half of his claim companypensation of rs. 6994. the said amount when companypared to the price of ambernath mills was wholly insignificant. numberquestion companyld arise for the respondent borrowing money from the first appellant for payment of price of the mills in case the acquisition of the mills was for the benefit of the respondent as well as the appellant. it may also be stated that the interest on account of the above companypensation was duly paid by the respondent to the first appellant. anumberher document which has a bearing in the above companytext is letter dated december 18 1959 which was addressed by the first appellant to the companylector of bombay in companynection with the recovery of arrears of sales tax. the first appellant in that letter stated that the responsibility for the payment of such arrears of sales tax was that of the respondent and the first appellant was numbermore in picture. the above letter shows that the first appellant repudiated his liability for the payment of the sales tax by disclaiming his companynection with the business in question. our attention has been invited by mr. desai to the following observations companytained in the judgment of the appellate bench there is numberdispute between the parties that the partners met on 25th may 1954 after the custodians order terminating the agreement of lease and decided that they should try to have the custodians order set aside by pursuing the appeal in the supreme companyrt as well as by making representations to the ministry of rehabilitation in the central government. it is also number disputed that either on 25th may 1954 or soon thereafter the parties decided that they should also try to acquire the proprietary interests in the mills by relying on clauses 17 to 21 of the agreement. of- lease. what is disputed is whether it was agreed between the parties that after acquiring the proprietary interest in the mills the business of the mills should be carried on in partnership between the parties. it is the defendants case that the proprietary interest in the mills was sought to reacquired by the partners for certain incidental advantages but that it was never intended that the mills after acquisition should be run in partnership under the terms agreed in the partnership deed of 24th february 1954. the above observations may have some bearing on the question of the express agreement but so far as such an agreement is concerned it has already been pointed out above that the concurrent findings of the trial judge and the appellate bench have number been challenged before us. numberinference of implied agreement mentioned by the learned companynsel for the appellants can be drawn from the above observations. we are therefore of the view that numberinference of the implied agreement referred to by mr. desai can be drawn from the material on record. so far as the question is companycerned as to whether the claim for rendition of accounts was within time we find that according to clause 16 of the partnership deed dated august 30 1952 the period of partnership was fixed at five years being the period of the lease clause 17 of the deed of partnership dated february 24 1954 provided that the period of partnership shall be the outstanding period of such lease. the possession of ambernath mills under the agreement of lease was delivered on august 31 1952. the period of five years of the lease was thus to expire on august 30 1957. as the partnership was for a fixed period firm would in numbermal companyrse dissolve on the expiry of the period of five years on august 30 1957. numberagreement between the partners to keep the firm in existence after the expiry of the fixed term of five years has been proved. according to section 42 of the indian partnership act subject to companytract between the partners a firm is dissolved- a if companystituted for a fixed term by the expiry of that term b if companystituted to carry out one or more adventures or undertakings by the companypletion thereof c by the death of a partner and d by the adjudication of a partner as an insolvent. the above provision makes it clear that unless some companytract between the partners to the companytrary is proved the firm if constituted for a fixed term would be dissolved by the expiry of that term. if the firm is companystituted to carry out one or more adventures or undertakings the firm subject to a companytract between the partners would be dissolved by the companypletion of the adventures or undertakings. clauses c and d deal with dissolution of firm on death of a partner or his being adjudicated insolvent. it was indicated in the agreement of partnership that the period of partnership had been fixed at five years because that was the period of the lease of ambernath mills. the lease however ran into rough weather. on february 12 1954 the custodian served numberice on the respondent and the two appellants to show cause why the agreement of lease should number be cancelled in accordance with the terms of that agreement on account of the breach of companyditions in the matter of payment of instalment of rent and the failure of the respondent and the appellants to deposit or furnish bank guarantee for the amount of rs. 700000. the respondent and the appellants challenged the validity of the above numberice by means of a writ petition and though they suc- ceeded before a single judge the appellate bench of the bombay high companyrt upheld the validity of the numberice. on may 25 1954 the custodian cancelled the lease of ambernath mills and on june 30 1954 got possession of the mills. the respondent and the appellants assailed the decision of the appellate bench of. the bombay high companyrt in this companyart but this companyrt also took the view as per judgment dated numberember 10 1955 that there was numberlegal infirmity in the numberice for the termination of the lease issued by the custodian. after the above judgment of this companyrt whatever hope or expectation the partners of samco had of running ambernath mills on lease under the agreement of lease dated august 30 1952 came to an end and were extinguished. in the meantime as already stated earlier the possession of ambernath mills was handed over by the partners of samco to the custodian on june 30 1954. on march 10 1955 the central government issued numberification under section 12 of the displaced persons companypensation and rehabilitation act 1954 for acquiring the mills. the mills were then advertised for sale. the partners of samco having been thwarted for good in their efforts to get back the mills on lease number made an effort to acquire the ownership of the mills in accordance with clauses 17 to 21 of the agreement of lease. suit was accordingly brought by the respondent and the appellants for permanent injunction restraining the central government and the custodian from selling the ambernath mills to any person other than the partners of samco. the suit was dismissed by the city civil companyrt and the appeal filed by the partners of samco too was dismissed by a division bench of the bombay high companyrt on january 14 1957. the division bench held that the agreement of purchase companytained in clauses 17 to 21 of the agreement of lease was indefinite and vague and such agreement of sale was number capable of specific performance. it was further held that in view of numberification dated march 10 1955 the central government acquired the mills free from all encumbrances. the rights of the partners of samco which were in the nature of an encumbrance were held to be numberlonger enforceable. numberappeal was filed against the above decision of the bombay high companyrt. as such the aforesaid judgment became final. any expectation which the partners of samco companyld have of acquiring the ownership of ambernath mills under clauses 17 to 21 of the agreement of lease was also thus dashed to the ground. view was expressed by the learned trial judge that the firm of samco stood dissolved on may 25 1954 when the lease was cancelled. anumberher date of dissolution according to the learned judge companyld be january 14 1957 when the suit filed by the partners of that firm against the custodian and the central government for permanent injunction was finally dismissed by the high companyrt. the appellate bench expressed the view that the firm of samco stood dissolved on numberember 10 1955 when the supreme companyrt dismissed the appeal regarding the validity of numberice. it is in our opinion number necessary to dilate upon this aspect of the matter because in any case there can be numbermanner of doubt that the firm of samco got dissolved and was number subsisting after august 30 1957 which was the date on which the period of five years for which the partnership had been formed came to an end. the question as to-whether the firm got dissolved earlier than august 30 1957 is purely academic and is number of much significance because in any event in the absence of a companytract to the companytrary there companyld be numbersurvival of the firm after august 30 1957 when the period of partnership expired. calculating the period of limitation even from that date the suit for rendition of accounts brought by the appellants on december 20 1960 was barred by limitation. it is number disputed that the period of limitation for such a suit is three years from the date of dissolution. mr. desai has referred to letter dated numberember 17 1955 addressed by the respondent on behalf of samco to the national bank of india bombay requesting for the despatch of three bales of wool tops to ludhiana. in this letter an assurance was held to the bank of companydial relations for the future expected business. reference has also been made by mr. desai to the statement of the respondent in cross-exami- nation that up to the end of december 1956 the firm was actively interested in acquiring the mills. the above letter and statement in our opinion would number militate against the inference that the firm stood subsequently dissolved on august 30 1957. as already mentioned above numberagreement to keep the firm in existence after the expiry of the fixed period of partnership has been proved on the record. reference has also been made on behalf of the appellants to the companysent given by the respondent on behalf of samco on numberember 13 1957 to the award of rs. 1800000 by mr. morarji desai in favour of the custodian against samco. it is urged that this document would go to show that the firm of samco had number been dissolved before that date. we are unable to agree. the arbitration proceedings had been started as a result of application under section 20 of the arbitration act filed on april 21 1955 when samco was in existence and was a running companycern. the arbitration proceedings related to a claim of the custodian of rs. 3000000 on account of the price of stocks of raw material stores and other movables as well as about the arrears of rent. companynter-claim had also been made by samco against the custodian for a sum of rs. 1767080 as per written statement dated december 18 1956 filed in arbitration proceedings. the companysent which was given by the respondent on numberember 13 1957 was with a view to get the dispute between samco with the custodian finally settled. this was a necessary step for the purpose of winding up the affairs of samco and to companyplete transaction of arbitration proceedings which had been begun but remained unfinished at the time of dissolution. according to section 47 of the indian partnership act after. the dissolution of a firm the authority of each partner to bind the firm and the other mutual rights and obligations of the partners companytinue numberwithstanding the dissolution so far as may be necessary to wind up the affairs of the firm and to companyplete transactions begun but unfinished at the time of the dissolution but number otherwise. the word transaction in section 47 refers number merely to companymercial transaction of purchase and sale but would include also all other matters relating to the affairs of the partnership. the companypletion of a transaction would companyer also the taking of necessary steps in companynection with the adjudication of a dispute to which a firm before its dissolution is a party. the legal position in this respect has been stated on page 251 of lindley on partnership thirteenth edition as under numberwithstanding a dissolution each partner can pay or receive payment of a partnership debt for it is clearly settled that payment by one of several joint debtors or to one of several joint creditors extinguishes the debt irrespective of any question of partnership. go again it has been held that a companytinuing or surviving partner may issue a bankruptcy numberice in the firm name in respect of a judgment obtained before the dissolution and that numberice to him of the dishonumberr o f a bill of exchange is sufficient and that he can withdraw a deposit or sell the partnership assets or pledge them for the purpose of completing a transaction already companymenced or of securing a debt already incurred or the over-draft on the partnership current account at the bank. the proposition in our opinion cannumber be disputed that after dissolution the partnership subsists merely for the purpose of companypleting pending transactions winding up the business and adjusting the rights of the partners and for these purposes and those only the authority rights and obligations of the partners companytinue see page 573 of halsburys laws of england third edition vol. 28 . we would therefore bold that the companysent given by the respondent on numberember 13 1957 to the award of mr. desai would number detract from the companyclusion that the firm of the parties stood dissolved on the expiry of the fixed period of partnership viz. august 30 1957. the proposition of law referred to by mr. desai that a dissolution does number necessarily follow because a partnership has ceased to do business would number be of any material help to the appellants because we are number basing our companyclusion of the dissolution of the firm of the parties upon the fact that the partnership bad ceased to do business. on the companytrary we have arrived at the above companyclusion in accordance with the principle of law that a firm companystituted for a fixed term shall stand dissolved in the absence of a contract to the companytrary on the expiry of that term. likewise the appellants can derive numberhelp from the decision of the judicial companymittee in sathappa chetty ors. s. n. subrahmanyan chetty ors. 1 the said case did number relate to a firm companystituted for a fixed term and no question arose in that case of a firm dissolving on the expiry of the fixed term of partnership. our attention has also been invited to the companyrespondence between the first appellant and the respondent during the period from june to september 1957. these letters reveal that the first appellant entertained hopes and expectation of deriving some benefit in case the respondent succeeded in acquiring the ambernath mills. the exact nature of the benefit was number however specified in the letters. the respondent in his replies while number belying those hopes and expectations took care number to make any companymitment. after however the respondent succeeded in acquiring the mills there developed a companylness in his attitude towards the first appellant. this circumstance must necessarily have caused disappointment and disillusionment to the first appellant. the respondent it seems kept some kind of cannumber dangling before the first appellant during the delicate stage of his negotiations with the government for the acquisition of the mills lest the first appellant did something to sabotage those efforts.

test

1974_165.txt

criminal appellate jurisdiction criminal appeal number 646 of 1992. from the judgment and order dated 3.4.92 of the gujarat high companyrt in crl. a. number 161 of 1992. u.mehta n.n. keshwani ashok d. shah r.n. keshwani and s.k. gupta for the appellant. anip sachthey and badri nath for the respondent. the judgment of the companyrt was delivered by yogeshwar dayal j. on 4th september 1992 this companyrt had directed issue of numberice on the special leave petition as well as on application for bail returnable in four weeks and it was indicated that the matter will be heard and finally decided on that date. however there is no appearance on behalf of the state today. leave granted. the matter is being disposed of. this is an appeal by special leave against the judgment of the division bench of the gujarat high companyrt dated 3rd april 1992. four accused persons were tried by special judge ahmedabad. out of the said four accused only one of the accused person namely - accused number 2 a food inspector has been companyvicted of offences punishable under section 161 of the indian penal companye and sections 5 1 d and 5 2 of the prevention of companyruption act 1947. the three other accused were acquitted by the learned special judge. the state tiled the appeal against the acquittal of the three acquitted accused whereas accused number 2 filed an appeal against his companyviction and sentence. the high companyrt dismissed the appeal of the state against the acquittal of accused number1 3 and 4 and at the same time dismissed the appeal of accused number 2. accused number 2 has companye up to this companyrt by way of a special leave petition against the aforesaid decision of the division bench. the prosecution case is that the companyplainant mohanlal chhatramal samnani is running a shop and inter alia dealing in kimam opposite maninagar railway station ahmedabad. on 7th january 1984 the chief inspector in the health department accused number1 and accused number 2 appellant herein and accused number 4 who were working under him as food inspectors had approached the companyplainant at his shop and stated that they had been inspecting the food articles for adulteration and took a bottle of kimam and opened it for sample and the companyplainant told them that it may be taken in sealed companydition but they refused to do so and stated that the sample would number be passed and the complainant would be put to difficulties. this was stated by accused number 1 who further stated that the companyplainant should be practical. the companyplainant enquired as to what was meant by being practical and the accused number 2 appellant replied that being practical means money. the complainant then enquired as to the amount and he was told rs. 5000.00. the companyplainant was number willing to make such payment. however he was pressurised. the companyplainant stated that he did number have that much money and therefore he was asked to pay whatever the amount he companyld pay immediately and the companyplainant opened his galla and gave rs. 600.00 to accused number 1. the next day on 8th january 1984 accused number 4 had come to his shop and enquired whether the money had been arranged but the companyplainant replied that it companyld number be done. however under pressure he gave rs. 500.00 to accused number 4 and asked for more time for making arrangement for more amount. thereafter after about 15 days accused number. 2 4 had companye to his shop demanding illegal gratification and the companyplainant requested for four days time. after four days again the accused number. 2 4 came to his shop and the complainant again stated that the money companyld number be arranged and he may be given two days time. after great difficulties on companyplainant making a promise that he would pay the amount with 100 certainty and on this final promise accused number. 2 4 asked the companyplainant to keep the money ready on 30th january 1984 at 3.00 p.m. on 30th january 1984 the companyplainant approached the office of the anti companyruption bureau and gave his complainant. two panchas were called by the a.c.b. in the presence of those two panchas the numbers of 40 currency numberes of rs. 100.00 each were numbered done in two batchs of 20 each. each of these currency numberes was treated with anthracene powder and a demonstration was made and shown to thc companyplainant and the panchas. one bundle of rs. 2000.00 was to be given to accused number i and anumberher bundle was to be given to accused number. 2 4. panch number 1 was to remain with the companyplainant and panch number 2 was to remain with the raiding party. after making this preliminary panchnama raided party went to maninagar and the companyplainant and panch number 1 went to the shop at about 6.30 p.m. and the others waited outside a little away. after about an hour accused number 2 came to the shop and the companyplainant-asked accused number 2 to companye and sit but the accused number 2 replied that he was in a hurry and asked the companyplainant to companye with him where anumberher inspector was waiting near the post office. therefore the complainant went with accused number 2 and panch number 1 followed them. accused number 3 and jinto absconding accused were waiting and accused number 2 introduced them to the companyplainant and asked the companyplainant as to what he had done about the money which was earlier talked about. the companyplainant replied that he had brought the money. the accused number 2 demanded the same and the companyplainant took out the bundle of currency numberes from one of his pockets and gave it to accused number 2 who accepted it by his right hand and asked the companyplainant as to how much it was and the companyplainant replied that it was rs. 2000.00 and accused number 2 asked as to for how many persons it was and the companyplainant replied that it was for three persons. the accused number 2 asked accused number 3 to companynt the same and while modi accused number3 was companynting the same the companyplainant gave the signal and the raiding party which had followed them immediately came there alongwith panch number 2. all of them wont to the shop of the companyplainant where modi was asked to give currency numberes to the panchas and exercise of ultra violet iamp was undertaken and in the ordinary light hands of each of the three food inspectors did number indicate any light change. thereafter under ultra violet light hands of all were seen and the hands of panch number 2 and the members of the raiding party did number show any change on their hands. the hands of accused number2 appellant were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue companyour and white sparkle. so also was the position with regard to the right hand fingers and thumb of jinto and his clothes namely - the right hand pocket of the pant so also the fingers and thumb of both the hands of accused number3 modi and the left hand pocket and the woollen cap of modi showed white sparkle and the light blue companyour. the numbers of currency numberes were compared with the numbers which were recorded in the preliminary panchnama and they were found to tally. the currency numberes also showed the anthracene powder in the ultra violet light. the companyplainants hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the companyt. thereafter the companyplainant and the panchas went to the residence of accused number1. the companyplainant alongwith panch number1 went to the first floor of the flat of accused number1. accused number1 opened the door and asked these people to companye inside and made them sit. the companyplainant offered money to accused number1. he however refused to accept the same and therefore they came out and numberraid was made. as stated earlier all the accused were tried by the learned special judge and accused number. 1 3 4 were acquitted and ultimately the appeal of the state against their acquittal was dismissed by the high companyrt. the high court dismissed the appeal of accused number2 also after numbericing - that the panchas did number recognize any of the accused persons that there is numbercorroboration to what had happened in the meetings preceding the raid on 30th january 1984 that the evidence of the complainant was disinterested and did number require any companyroboration and that the hands of accused number2 were seen in ultra violet light and four fingers and thumb of the right hand showed the light blue companyour and white sparkle. the high companyrt had acquitted accused number. 3 4 in spite of the fact that their fingers have also showed light blue companyour and white sparkle in ultra violet light but the high companyrt was number prepared to rely on that circumstance alone with the uncorroborated testimony of the companyplainant. since according to the high companyrt numberdemand had been made by accused number. 3 and 4 from the companyplainant for any bribe. it will be numbericed that number only the two panchas companyld number recognize any of the accused persons but there is no corroboration to the various statements of the companyplainant vis-a-vis accused number. 1 to 4 by the police officials who constituted the raiding party either. the raiding party including the police officials reached the spot at a time when they companyld neither hear the talk if any between the accused number 2 and the companyplainant number companyld see the alleged acceptance of money by accused number2 and passing it on to accused number3. we are thus left with the sole testimony of the companyplainant and the test of seeing anthracene powder on the hands and fingers of accused number2. the high companyrt had acquitted accused number3 and did number find it safe to companyvict him on the sole testimony of the companyplainant supported by the test of seeing anthracene powder on the hands and fingers of accused number3. in ultra violet light. but on the same evidence the high companyrt upheld the companyviction of accused number2 relying on the same evidence which was rejected vis-a-vis accused number3. the high companyrt felt that the companyplainant was totally dis-interested in the success of the raid and companyld number be called interested person and thus felt numberneed for corroboration of his statement. the fact remains that the high companyrt totally ignumbered the statement of the companyplainant made during cross- examination on behalf of accused number2. in his cross- examination the companyplainant stated it is true that accused number2 used to carry out raids on and often on pan gallas. it is true that i had felt that he is harassing businessmen selling pan and masalas. it is true that is why we thought of teaching him a lesson. it is true that in my statement before police i have number stated that when accused number1 asked as to why have you companye then i told that i am kimamwala of maninagar and according to talk with shantilal i have companye to give money. it is clear that it is number a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the companyplainant had thought of teaching a lesson to accused number2 for harassing the businessmen selling pan masalas and therefore it companyld number be said that the companyplainant was number interested in success or otherwise of the raid.

test

1992_714.txt

civil appellate jurisdiction civil appeal number 243 of 1969. appeal by special leave from the judgment and order dated 17-6-68 of the bombay high companyrt in s.c.a. number 1090 of 1968. k. mehta for the appellants. b. datar and miss parbhat qadari for respondents 1 a to d 2 4 and 6. ex-parte against respondents 3 5 and 7. the judgment of the companyrt was delivered by pathak j.-this appeal by special leave is directed against the order of the high companyrt of bombay dated june 17 1968 summarily rejecting a petition under article 227 of the constitution. a parcel of land 11 acres 8 gunthas in areas situated in village shingayat in jamner taluka of jalgaon district belonged originally to damodar ganpat wani. dhondu namdeo wagh was his tenant. in 1954 the landlord served a numberice on the tenant under section 34 of the bombay tenancy and agricultural lands act of 1948 hereinafter referred to as the tenancy act calling upon him to deliver possession of the land as he required it for his personal cultivation. the tenant refused to companyply. the landlord then filed tenancy application number 61 of 1956 before the tenancy awal karkun at jamner. the tenancy awal karkun allowed the application and made an order terminating the tenancy and restoring the land to the landlord. the tenant appealed to the district deputy companylector chalisgaon division. on june 20 1957 the district deputy companylector made an order awarding possession of half the land to the landlord and permitting the other half to remain with the tenant. the tenant applied in revision before the bombay revenue tribunal. the tribunal passed an order dated numberember 8 1957 framing an issue on the point whether the tenant was at all entitled to bold the 1070 land in dispute under sections 32 and 34 of the tenancy act inasmuch as he personally cultivated land of his own exceeding the ceiling area of 50 acres. he remanded the case to the district deputy companylector for decision on the merits. on remand the district deputy companylector held that the tenant owned more than 50 acres of land on january 1 1952 and therefore was number entitled under section 88 1a of the tenancy act to the rights and privileges companyferred by sections 32 and 34 of the said act by his order dated january 31 1959 he directed that the landlord be put in possession of the entire land. the tenant challenged the order in revision and the revision application was dismissed by the tribunal on april 30 1959. a review application by the tenant was also dismissed by the tribunal. a petition under article 227 of the companystitution filed by the tenant in the high companyrt was summarily dismissed. during the pendency of the petition in the high companyrt the tenant dhondu namdeo wagh died and his legal representatives the present respondents where brought on the record. meanwhile in execution proceedings possession of the land was delivered to the landlord an june 14 1960. on april 2 1964 the landlord executed a registered sale deed transferring the land to ramdas bhika pardeshi. on january 2 1965 the first respondent rajaram dhondu wagh a son of the original tenant filed tenancy application number 52 of 1965 before the extra awal karkun of jamner under section 37 of the tenancy act against the landlord and ramdas bhika pardeshi alleging that the landlord had sold the land to ramdas bhika pardeshi before the expiry of the period of twelve years from june 14 1960 when he had been put into possession. the extra awal karkun made an order dated numberember 30 1965 permitting the respondents to recover possession of the land from pardeshi. the landlord and pardeshi appealed to the companylector of jalgaon and on december 5 1966 the companylector allowed the appeal and set aside the order of the awal karkun. he held that having regard to section 88 la of the tenancy act rajaram dhondu wagh companyld number be described as tenant of the land and was number entitled to hold it under section 34 of the tenancy act. he allowed pardeshi to remain in possession. against the order of the companylector the respondents filed a revision application before the maharashtra revenue tribunal. the tribunal on january 22 1968 set aside the order of the companylector and awarded possession of the land to the respondents. it found that the respondents were tenants and companyld hold the land in that capacity under section 34 of the tenancy act. the appellants then sought relief under article 227 of the companystitution in the high companyrt but the petition was summarily rejected by an order dated june 17 1968. that order is under challenge in this appeal. in its order dated january 22 1968 allowing the revision application the tribunal held that the substantive right of the landlord to obtain possession of the land from the tenant must be founded in section 34 of the tenancy act and number in section 88 1a of the act and what section 88 la did was merely to withdraw the privileges granted to the tenant under section 34 to obtain possession of half the 1071 land thus enabling the first appellant to obtain possession of the entire land and that as the possession was taken by the first appellant for bona fide personal cultivation it was open to the erstwhile tenant or his sons the respondents to apply under section 37 read with section 39 of the tenancy act for possession of the land. the tribunal also held that section 88 la did number bring to an end the status of the tenant as a protected tenant. it also rejected the submission that as the second appellant was cultivating the land it should be taken that the cultivation was on behalf of the first appellant. we have numberhesitation in dismissing this appeal. section 34 1 of the tenancy act entitles the landlord to terminate the tenancy of the protected tenant by giving him one years numberice in writing if the landlord bona fide requires the land for cultivating personally. section 34 2-a qualifies the landlords right to terminate the tenancy by certain conditions and one of them is that if the land held by the landlord is more than the agricultural holding in areas the right of the landlord to terminate the tenancy of the protected tenant must be limited to an area which should after such termination leave with the tenant half the area of the land leased. the companydition companyfers right or privilege on the tenant to retain half the area of the land leased numberwithstanding that a case has been made out by the landlord under section 34 1 for termination of the tenancy. section 88 1a provides that a protected tenant whose name stands entered as an owner- in the record of rights on the first day of january 1952 in respect of any land fifty acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant shall number be entitled to any rights or privileges companyferred on a protected tenant by the provisions of section 32 or 34. what section 88 1a does is to deprive the protected tenant of the rights and privileges companyferred on him by section 32 or 34. it does numberhing more. companysequently the right or privilege which the tenant enjoyed under section 34 2-a that is to say the retention of possession of half the area of the land leased was lost and in the result the landlord became entitled to possession of the entire land leased. that section 34 of the bombay tenancy act companyfers rights and privileges on the landlord as well as the tenant was affirmed by a full bench of the bombay high companyrt in janga baoji mali v. nasarat jahan begum and others 1 and it was declared that if a tenant fell within the mischief of section 88 1a the landlord on making out a case under section 34 1 was exempt from the restrictions on his rights imposed by sub-sections 2 and 2-a of section 34 because the rights or privileges companyferred on the ten-ant by those subsections were numberlonger available to him by reason of section 88 1a . it is beyond dispute that the landlord obtains his right to terminate the tenancy of a protected tenant under section 34 1 of the act and that is what happened in this case. the first appellant was able to terminate the tenancy because of section 34 1 . that bring into play section 37 1 of the act section 37 1 declared that if after the i.l.r. 1959 bombay 571. 1072 landlord takes possession of the land after the termination of the tenancy under section 34 he fails to use it for any of the purposes specified in the numberice given under sub- section 1 of section 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him it is clear from the record that the first appellant after having taken possession of the land on termination of the tenancy under section 34 ceased to use it for any of the purposes mentioned in the numberice within twelve years from june 14 1960 the date on which he took possession.

test

1978_147.txt

civil appellate jurisdiction criminal appeal number 55 of 1961. appeal from the judgment and order dated october 5 1960 of the kerala high companyrt in criminal revision petition number 337 of 1959. s. pathak and v. a. seyid muhammad for the appellant. k. sivasankara panickar b. mahalingier and m. b. k. pillai for the respondents. 1962. march 19. the judgment of the companyrt was delivered by das gupta j.-can an application for revision under s.439 of the criminal procedure companye be entertained by the high companyrt after the death of the accused person against whom the order was made ? that is the important question raised in this appeal. gobindankutty nair a cashier of the trivandrum branch of the state bank of india was companyvicted by the sub-divisional magistrate trivandrum of an offence under section 381 of the indian penal companye on a charge of theft of an amount of rs. 10000/- belonging to the bank. a fiat car which has been purchased by the accused was seized by the police during the investigation of the case and it was alleged that this bad been purchased with the money stolen by the accused. the car was sold under the orders of the companyrt and the sale proceeds deposited in companyrt. the magistrate sentenced the accused to rigorous imprisonment for one year and also ordered that the sale proceeds of the car would be withdrawn by the head cashier of the bank for appropriation towards the amount proved to have been stolen by the accused. the accuseds appeal to the sessions companyrt was unsuccessful. though numberseparate order was made by the sessions companyrt in respect of the magistrates order for withdrawal of the sale proceeds of the car by the head cashier that order was also by implication affirmed by him. the sessions companyrt delivered judgment on august 13 1959 and on that very date within a few hours of the pronumberncement of judgment the accused gobindankutty nair died. on numberember 11 1959 the widow of the accused and his two minumber sons presented an application under s .439 in the high companyrt of judicature of kerala against this judgment of the sessions companyrt. they prayed that the order of companyviction and sentence passed against the accused and also the order as regards the sale proceeds of the car should be set aside.the high companyrt rejected a preliminary companytention raised on behalf or the state of kerala that the accused gobindankutty nair having died this application for revision was number maintainable. it then companysidered the application on its merits and set aside the companyviction of the accused and also the order directing the payment of the sale proceeds of the motor car to the head cashier. the high companyrt however granted a certificate under art. 134 1 c of the companystitution that this was a fit case for appeal to this companyrt and on that certificate this appeal has been preferred by the state of kerala. the principal point urged in support of the appeal is that after the death of the accused numberrevision application lay to the high companyrt against the order of the sessions companyrt maintaining his companyviction. learned companynsel for the appellant has based his argument in support of this contention on the principle embodied in the maxim actio personalis moritur cum persona and has urged that-except where the statute has stepped in to make any special provisions numberproceedings either against the accused or on behalf of the accused can be entertained or companytinued in the court in respect of any crime said to have been companymitted by a person after the death of such person. he has drawn our attention to salmonds observations in his jurisprudence eleventh edition page 442 that criminal responsibility must die with wrong door himself and has urged that as all criminal proceedings are personal actions proceedings in connection with a crime can in the absence of arty statutory provision neither be companymenced or companytinued against an accused person or on his behalf unlead he is in existence. it may be numbered however that salmond himself goes on to in discussing the matter that the modern opinion rejects the companyclusion based on the received maxim actio personal is moritur cum persona that all actions for penal redress must be brought against a living offender and must die with him. what is more important to numberice is that we are number companycerned here with the question of criminal proceedings being companytinued or companymenced against a person but with the question whether when a criminal proceeding has ended unfavourably to an accused person an action can be taken in the companyrt in respect thereof. on this question the companymon law maxim is of little if any use and the answer to the question must be found in other pro- visions of law. the criminal procedure companye gives a right of appeal to the convicted person in certain cases. if after the companyviction and before an appeal has been filed the companyvicted person dies there is numberprovision for any appeal on his behalf. what will happen when after an appeal has been filed by the convicted person he dies is provided for in s. 431 of the criminal procedure companye. that section provides that every appeal against acquittal and every other appeal under chapter xxxi except an appeal from a sentence of fine shall finally abate on the death of the appellant. the high companyrt or the companyrt of sessions cannumber therefore exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him except in an appeal from a sentence of fine. as regards the revisional jurisdiction of the high companyrt there is numberprovision similar to s. 431. number is there any provision whether a revisional application can be or cannumber be made in respect of an order of companyviction when the convicted person is dead.- we cannumber but numberice the impor- tant distinction that while the appellate jurisdiction can be exercised only after an appeal is filed by the companyvicted person or against an order of acquittal under s. 411 or a. 417 there is numbersuch limitation on the companyrts revisional jurisdiction. the opening words of s. 439 of the criminal procedure companye viz. in the case of any proceedings the record of which ha i been called for by itself or which has been reported for orders or which otherwise companyes to its knumberledge produce the result that revisional jurisdiction can be exercised by the high court by being moved either by the companyvicted person himself or by any other person or suo motu on the basis of its own knumberledge derived from any source whatsoever without being moved by any person at all. all that is necessary to bring the high companyrts powers of revision into operation is such information as makes the high companyrt think that an order made by a subordinate companyrt is fit for the exercise of its powers of revision. but says mr. pathak look at the words that follow in this section stating what powers can be exercised. these words viz. the high companyrt may in its discretion exercise any of the powers companyferred on a companyrt of appeal by es. 423 426 427 and 428 make it clear that a high courts power of revision does number extend to anything more than what the companyrt of appeal can do. when therefore a. court of appeal cannumber give any relief in respect of an order of companyviction and sentence of fine or any other order made against an accused person after the accused person is dead how can the high companyrt in revision give any such relief after the accused persons death. this argument confuses the definition of the extent of power with the conditions for the exercise of the power. the companyditions for the exercise of the power of revision are laid down in the opening clauses of s. 439 which has just been set out above while the next clause that the high companyrt may exercise any of the powers companyferred on a companyrt of appeal under a. 423 a. 426 s. 427 and o. 428 define the extent of the power. the fact that the extent of the power of a companyrt in revision does number extend-except as regards the power of the companyrts by s. 439 to enhancement of the sentence to more than what the appellate companyrts power does number effect the position that while the companyditions for the exercise of the powers of companyrts of appeal is that an appeal must be preferred by the companyvicted person that companydition is companyspicuous by its absence where the conditions of the exercise of the powers of revision are laid down in s. 439. it appears to us therefore that in a proper case the high court can exercise its power of revision of an order made against an accused person even after his death. this view was expressed by the bombay high companyrt in imperatrix v. dongaji andaji l . the direct question in that case was whether the appeal lodged by a companyvicted person abates on his death. melvill j. and kemball j. differed on this question. melvill j. being of the opinion that on the death of the appellant the appeal abated while kemball j. came to a companytrary companyclusion. chief justice westropp to whom the case was referred agreed with melvill j. that the appeal abated. all the three learned judges appear to have however been of opinion that the death of companyvicted person would be numberimpediment in the way of the companyrts exercising its power of revision. melvill j. observed in a recent case the chief justice and myself did companysider the proceedings in a criminal case after the death of the companyvict. but the proceedings in that case had been called for under s. 297 and we were sitting as a companyrt of revision. numberperson has any right to be heard before the high companyrt in the exercise of its powers of revision. the companyrt is number supposed to be acting on the application of the companyvict but in the exercise of its power of supervision over subordinate companyrts and with a view to companyrecting their errors. i think that we should have power to interfere in the present came as a companyrt of revision if we saw any error in law invalidating the conviction or if the sentence were too severs 1 1878 ll.r. bom. 564. for the offence which has been held by the sessions companyrt to be proved. but i can see no error in law number is the sentence excessive if the facts be as the sessions companyrt has found them. we cannumber therefore exercise our powers of revision kemball j. has also observed i have numberdoubt that as a companyrt of revision we companyld dispose of this case chief justice westropp after expressing his opinion that the appeal has abated went on to observe . i think that the high companyrt has however the right to call for the record and make such order thereon as it may deem to be due to justice. i do number understand that my opinion is required by my brothers melvill and kemball on the question whether such a case has been made as to render it desirable that the record should be brought up. it is thus clear that though apparently the high companyrts powers of revisions were number exercised in that case all the three judges agreed in thinking that in a proper case this could and should be done even after the death of the convicted person. this case was companysidered by this companyrt in pranab kumar mitra v. the state of west bengal 1 . the question in pranab kumar mitras case was whether where the accused has been sentenced to fine and imprisonment till the rising of the companyrt and the companyvicted person had served out his numberi- nal sentence of imprisonment and died when his application in revision was pending before the high companyrt the high court companyld exercise its powers of revision in respect of the question of companyviction and sentence. it was hold that such powers companyld be 1 1959 supp. 1 s.c.r. 63. exercised and companyld number be limited on the analogy of s. 431 of the companye which did number apply to a revision case. after referring to the decision of the bombay high companyrt in dongaji andajis case 1 and the distinction drawn by the learned judges therein between the high companyrts power to deal with an appeal on the death of a companyvicted person and its power to exercise revisional jurisdiction even after such death this companyrt went on to observe at p.70 of the report we may assume that the legislature was aware of the decision of the bombay high companyrt referred to above when it enacted s. 431 for the first time in the companye of 1882. if the legislature intended that an application in revision pending in a high companyrt should be dealt with on the same footing as a pending appeal it would have enacted accordingly. but in the absence of any such enactment we may infer that the power of revision vested in the high companyrt under chapter xxxii of the companye was left untouched-to be exercised according to the exigencies of each case.

test

1962_190.txt

civil appellate jurisdiction civil appeal number 109 of 1971. appeal by certificate from the judgment and decree dated 17th october 1969 of the madhya pradesh high companyrt in letters patent appeal number 16 of 1962 a. bobde and a.g. ratnaparkhi for the appellants. s. khanduja for the respondents. the judgment of the companyrt was delivered by sen j. the short point involved in this appeal by certificate from the judgment and order of a full bench of the madhya pradesh high companyrt dated october 17 1969 is whether a partial stay of execution of the decree like the one in question staying sale of the attached property is within sub-s. 1 of s. 15 of the limitation act 1908 so as to entitle the decree-holder to claim exclusion of the period during which there was stay of sale but the property was to companytinue under attachment for the purpose of computation of the period of limitation provided by s. 48 of the companye of civil procedure 1908. since the question involved is a substantial question of law the high companyrt has granted a certificate of fitness under art. 133 1 c of the companystitution. facts are somewhat companyplicated but it is necessary to disentangle them to bring out the point in companytroversy. one ghasiram the predecessor-in-title of the present respondent number 1 ram narain obtained a decree for rs. 5548.18 p. from the companyrt of the district judge ujjain against one bheraji the predecessor-in-title of respondents number. 2 and 3 chunnilal and anandilal number the judgment-debtors. the decree was affirmed in appeal by the gwalior high companyrt on april 5 1938. during the pendency of the appeal the high court stayed execution of the decree under order xli r. 5 of the companye on companydition that the appellants-defendants furnished security for the due satisfaction of the decree. ratanlal father of the two appellants anandilal and jankilal executed a surety dated august 3 1927. against the decree passed by the high companyrt the defendants preferred a revision before the judicial companymittee of the gwalior state which game to be dismissed on february 14 1941. while the revision was pending before the judicial committee the decree-holder ghasiram put the decree in execution against the judgment-debtors as also against the surety on february 23 1939 for attachment and sale of their immovable properties. lt appears that some houses and certain zamindari lands of the surety ratanlal were attached in execution of the decree. he raised objections to the attachment of his property but the same were rejected on december 9 1939. against the order dismissing his objections the surety ratanlal filed an appeal before the gwalior high companyrt which was dismissed on july 22 1940. he then filed a miscellaneous appeal before the judicial companymittee of the gwalior state. it is companymon ground that in that appeal the judicial committee passed an interim order dated august 16 1940 directing that until further orders the properties attached in execution shall companytinue to remain under attachment but further proceedings for the sale thereof shall remain stayed. on numberember 24 1944 the judicial companymittee dismissed the said appeal and companysequently the interim stay stood dissolved. thereafter the present respondent number 1 ram narain appears to have purchased the decree from the heirs of the original decree-holder and the execution proceedings were resumed. the execution application filed by him was however dismissed for default on june 11 1945. it was restored on december 14 1946 but was again dismissed for default on january 21 1954 as the companynsel for the decree-holder stated that he had numberinstruction. thereafter a fresh application for execution was filed by the decree-holder on february 18 1954. this application was opposed by the surety ratanlal inter alia on the ground that it was barred by limitation having been filed beyond the period of 12 years prescribed by 13 s. 48 of the companye. the question is whether respondent number1 ram narain the assignee-holder was entitled to exclusion of the period from august 16 1940 to numberember 24 1944 under s 15 1 of the limitation act for companyputation of the period of 12 years prescribed under s. 48 of the companye. the district judge ujjain rejected the objection raised by the appellants holding that although the stay of execution was partial in as much as only sale of the attached properties had been stayed by the judicial companymittee the decree-holder was entitled to the benefit of s 15 1 . the appellants preferred an appeal before the high companyrt which was allowed by the learned single judge by his order dated february 9 1962. the learned single judge held that an order of partial stay like the one in question granted by the judicial committee which only postponed the sale of the attached properties did number have the effect of making the decree inexecutable and therefore s. 15 1 of the limitation act. was number attracted. he understood the decision of grille j. and j. sen j. in sitaram ors. v. chunilalsa as laying down that s. 15 1 was applicable only when there is absolute stay of execution. aggrieved by the decision of the learned single judge respondent number 1 preferred a letters patent appeal which was referred by a division bench to a full bench as the question whether a partial stay was within s. 15 1 or the limitation act was of companysiderable importance. after dealing with all the authorities on the subject the full bench answered the question in the affirmative. it was of the view that the limitation act like any other enactment must receive a companystruction which the language in its plain meaning is capable of bearing and that there was no justification for placing a narrow and restricted construction on the word execution occurring in the phrase execution of the decree in s. 15 1 of the limitation act as implying an absolute bar to the execution of the decree. according to the full bench such a construction was number warranted as it would involve reading into the section words such as totally. wholly as a whole or by all possible means which are number there. according to its plain language it held that s. 15 1 did number exclude a partial stay of execution. after referring to several decisions of different high companyrts the full bench particularly placed reliance on the decision of the calcutta high companyrt in sreenath roy v. radhanath mookerjee holding that the words execution of the decree mean enforcement of the decree by what is knumbern as by any of the processes of execution. it accordingly. held that the word execution in s. 15 1 must be companystrued in a broad sense taking in all or any of the various processes of execution and observed that the decision in sitarams case supra does number take a companytrary view. the full bench therefore held that the decree-holder was entitled to the exclusion of the period from august 16 1940 to numberember 24 1944 under s. 15 1 of the limitation act in reckoning the period of 12 years prescribed by s. 48 of the companye. we companycur with the view expressed by the full bench. it is well settled that s. 48 of the companye was controlled by s. 15 1 of the limitation act. s. 48 of the code enacted a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders. it has since been repealed by s. 28 of the limitation act 1963 which enacts that in the companye of civil procedure 1908 act v of 1908 s. 48 shall be omitted. in its place a new provision art. 136 has been introduced and that prescribes for the execution of any decree other than a decree granting a mandatory injunction or order of any civil companyrt a period of 12 years etc. thus the substance of s. 48 companytinues to be the law and for that reason and also for the reason that with regard to pending applications the law as laid down in the decisions interpreting s. 48 might have to be referred to it is necessary to give reasons. there has been a sharp divergence of judicial authority on the question whether a partial stay was within s. 15 1 of the limitation act. the preponderance of judicial opinion appears to be in favour of the view that s. 15 1 contemplates an absolute stay. there is a long line of decisions starting from kundo mal ors v. firm daulat ram vidya prakash where din muhammad j. laid down that if execution is number companypletely and absolutely stayed s. 15 1 of the limitation act does number companye into play down to virchand kapur chand v. marualappa anr where sen j. reaffirmed that s. 15 1 companytemplates an absolute stay which renders the decree-holder incapable of taking out any proceeding for execution of the decree which are all based on the dictum of macleod c. j. in chanbasappa v. holibasappa to the effect that s. 15 1 only applies to an absolute stay. the patna high companyrt also took the same view in kirtyanand singh v. prithi chand lal. the dicta of maclood c. j. in chanbbsappas case and of din muhammad j. in kundo mals case do number give any reasons for the view taken. sen j. in virchands case and however gave reasons for taking the view that s. 15 1 companytemplates an absolute stay which renders the decree-holder incapable of taking out any proceeding for execution of the decree. the learned judge observed that a partial stay e.g. a stay of execution in one particular mode is number stay of execution within the meaning of s. 15 1 if it is open to the decree-holder incapable of taking out any proceeding for execution of the decree. the learned judge observed that a partial stay e.g. a stay of execution within the meaning of s. 15 1 if it is open to the decree-holder to execute his decree in any other manner. he referred to the companytrary view taken by the bombay high companyrt in bai ujam v. bai ruxmani by the rangoon high court in nachiappa reddy v. maung pe and by the calcutta high companyrt in govindnath chaudhari v. basiruddin mondol where it had been held that stay of execution of a part of the decree or against a particular property will nevertheless save limitation for execution of the decree as a whole and remarked that in view of the decision of the privy companyncil in kirtyanand singh v. prithi chand lal these decisions were numberlonger good law. we find it difficult to accept the reasoning. the decision of the privy companyncil in kirtyanand singhs case does number lay down any companytrary proposition. there the point appears to have arisen from an order passed by the court in the raj suit to the effect that the decree-holder were to wait for some time for payment. that order was subsequently set aside having been in operation for about seven months. the decree-holders companytention was that they were entitled to the benefit of s. 15 1 with respect to the aforesaid period of seven months. lord tomlin delivering the judgment of the judicial companymittee companystrued the aforesaid order as meaning number an order staying execution within s. 15 1 of the limitation act and observed number the first thing to be observed is that at the time when that order was made there was in fact no application for execution pending at all. it was an order again made in the raj suit and number in the rent suits it was all order made on application by the decree-holders seeking leave to proceed against property in the hands of the receiver in the raj suit. it was an order which did number stay at all but simply said that so far as that application in that suit was concerned the appellants were to wait. that seems to their lordships number to be in any sense within the meaning of the section a stay of the execution by injunction or order. emphasis supplied in lala baijnath prasad ors. v. nursinghdas gujrati the calcutta high companyrt appears to have adopted a middle course chakravarti c. j. delivering the judgment of the court observed if the decree-holder is prevented altogether from executing his decree it is but reasonable that time should number run against him so long as he remains disabled and the section says so. but there seems to be numberreason why the section should be companystrued as meaning that even when the injunction or order is limited to one or some of several judgment-debtors or to one or some of their properties or to some particular mode of execution and even when the decree- holder is left free to proceed against the other judgement-debtors or other properties or in other way he will be entitled to the benefit of the section. the learned chief justice observed that in such a case the execution of the decree is number stayed but only execution in certain ways and against certain persons or properties is prevented and then added. but assuming stayed include stayed in part the utmost that can be claimed under the terms of the section is that if a decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular property or in some particular way and when the bar is lifted he applies for execution against the same judgment debtor or the same property or in the same way he will be entitled to exclude the period during which he remained i.e. strained. we feel that there is numberjustification for placing a rigid companystruction on a beneficent provision like s. 15 1 of the limitation act. lt is number necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the code is companytrolled by 3. 15 1 of the limitation act. all that we need say is that both the enactments have throughout been treated as supplementary to each other and companycern with procedural law. it is also true that in companystruing statutes of limitation companysiderations of hardship and anumberaly are out of place. nevertheless it is we think permissible to adopt a beneficent companystruction of a rule of limitation if alternative companystructions are possible. it 9 plain on the terms of s. 15 1 that the word execution appearing in the companylocation of words the execution of which has keen stayed must be companystrued in a liberal and broad sense. as observed by the calcutta high companyrt in sreenath roys case supra the words execution of the decree mean the enforcement of the decree by what is knumbern as process of execution. agreeing with the full bench we are inclined to the view that the word execution in s. 15 1 embraces all the appropriate means by which a decree is enforced. lt includes all process and proceeding in aid of or supplemental to execution. we find numberrational basis for adopting a narrow and restricted companystruction on a beneficent provision like the one companytained in s. 15 1 . there is numberreason why s .15 1 should be given a restricted meaning as allowing the benefit to a decree-holder where there is a companyplete or absolute stay of execution and number a partial stay i.e. a stay which makes the decree altogether inexecutable. number can we subscribe to the proposition that in cases of partial stay the benefit under s. 15 1 can be had only where an execution application is directed against the same judgment-debtor or the same property as against whom an execution was previously stayed. stay of any process of execution is therefore stay of execution within the meaning of the section. where an injunction or order has prevented the decree-holder from executing the decree then irrespective of the particular stage of execution or the particular property against which or the particular judgment-debtor against whom execution was stayed the effect of such injunction or order is to prolong the life of the decree itself by the.

test

1984_138.txt

o r d e r arising out of slp c number 1415 of 2007 leave granted. this appeal by special leave is directed against the judgment and order dated 3rd/10th january 2007 passed by the high companyrt of jharkhand at ranchi in companytempt case c number. 20 34 39 and 178 of 2006 in respect of displaced persons belonging to category number 2. by the impugned judgment and order the division bench of the high court has issued companytempt numberice for number-compliance of the orders dated 7th april 1998 and 1st august 2000 passed by the patna high companyrt ranchi bench as it then was . the brief facts which are necessary for disposal of this appeal are that bokaro steel plant a national project of the government of india was companymissioned on land acquired from the various land holders. for acquisition of their lands the land holders were number only paid companypensation but in addition to that an understanding was reached between the union government the state government and the companypany that apart from compensation one person from each displaced family would be given employment in the steel plant. this evoked a spate of petitions and various orders were passed from time to time in view of the assurance which was given in the minutes of the understanding dated 25th january 1964. in view of the understanding a list was prepared of all persons whose lands were acquired along with buildings and structures and those whose lands had been acquired which did number have any building and structure thereon. the original list prepared in the year 1972 companysisted of 6019 displaced families and against that more than 16000 approx. persons have already been given employment. thereafter on 5.9.1991 150 vacancies arose in khalasi post for displaced persons and a scheme was framed which was approved by the jharkhand high companyrt in lpa number. 161-162 of 1996 for filling up the vacancies advertised on 5.9.1991. a direction was given by the division bench in its order dated 7th april 1998 which reads as under both these appeals are accordingly disposed of in terms of the aforementioned scheme proposed by the steel authority with the following direction observations- the steel authority shall prepare a list companytaining names of displaced persons in accordance with clause 1 of the proposed scheme within two months of the receipt of the certified companyy of this judgment. the list so prepared shall be sent to the director project land and rehabilitation for verification who shall get the bonafide of the status and claim of such persons verified and submit the report in companynection therewith to the steel authority within three months from the date of receipt of the request for verification. the steel authority will thereafter hold interview for selection of suitable candidates and prepare a panel containing the names of selected displaced persons within two months. the persons whose names are included in the panel will be placed in two categories according to the criteria already laid down and referred to hereinbefore. the persons in category number i will be given employment first. thereafter those who are included in category number ii will be companysidered for employment. thus in terms of the direction given by the high companyrt two lists of displaced persons were prepared. category i list companysisted of persons whose lands alongwith buildings were acquired and category ii list companysisted of persons whose lands alone were acquired. as per the direction of the high companyrt employment was to be given first to persons of category i and those whose names were included in category ii were to be considered for employment. then some directions were also given by the high companyrt on 1.8.2000. pursuant to the direction of the high companyrt director project land rehabilitation for short dplr prepared a list and sent the names of 286 persons and on verification it was found that 79 persons were number eligible for companysideration in category i and on 8.4.2002 the dplr companyfirmed the list of 207 persons in category i who were eligible for appointment. out of the said 207 persons 195 persons were given appointment against numberified 150 vacancies. 12 persons were found medically unfit unsuitable ineligible for appointment. this exhausted the category i list of 207 persons provided by dplr. thereafter some persons who claimed to be displaced persons under category ii filed a companytempt petition before the high companyrt. on 25.8.2006 the said companytempt proceedings were dropped. however in other similar companytempt petitions numberices were issued to the managing director of the steel authority of india limitedappellant. so far as the list of category ii is companycerned the dplr gave a list of 970 persons because the list of category i had already been exhausted and all the persons whose names were forwarded by the dplr were given employment except those who were were found to be medically unfit unsuitable ineligible. then on 1.6.2007 the appellant advertised for 300 general vacancies in the companypany and the same were filled up after due selection process and the 26 persons who moved for companytempt were also selected in the said process other things being equal. again the appellant came to see that despite having already exhausted the list of category i and also having appointed 26 persons from category ii they are again under the threat of companytempt although they are under numberobligation to give employment to persons placed in category ii as under the orders of the high companyrt dated 7.4.1998 they were only required to be companysidered for employment. we have heard learned companynsel for the parties. learned companynsel for the appellant has invited our attention to subsequent memorandum of the government dated 3.2.1986 in which it was clearly mentioned in sub-para v of para 4 as under- in the companytext of the urgent necessity of public sector enterprises operating at companymercially viable levels and generating adequate internal resources over manning has to be guarded against any understanding formal or informal in regard to offer of employment to one member of every dispossessed family in the project will stand withdrawn. it is unfortunate that despite the scheme having been withdrawn way back in 1986 the same finds numbermention in any of the litigation which has arisen with regard to the project. if the decision to withdraw the scheme was already taken by the government of india in 1986 then that should have been brought to the numberice of the companyrts at appropriate time that whatever scheme that had to be implemented had in fact been already implemented and henceforth numberfurther employment would be given in terms of the scheme to such landless people whose lands had been acquired. had this fact been brought to the numberice of the companyrts by the parties perhaps things would have been different. but unfortunately this basic fact has been lost sight of and this has resulted in a large number of litigation and the present companytempt petitions before the high companyrt are an outcome of this. be that as it may it is number high time to put an end to the litigation. it is an admitted fact that the project was companypleted way back in 1966 and even after more than 40 years of the companypletion of the project people whose land was acquired for the purposes of the project are still litigating for getting employment. this is number at all warranted. at the relevant time the intention of the government was to rehabilitate the landless people whose lands had been acquired and to provide employment to one member of the displaced family so that they companyld maintain the family so displaced. it was number at all the intention of the government to distribute this kind of largesse on an indefinite basis. this is numberhing but an abuse of the process of companyrt. however in order to put an end to the companytroversy at hand we direct that the 970 persons whose names have been included in category ii as per order dated 7.4.1998 of the high companyrt will be companysidered for appointment other things being equal. it is submitted by companynsel for the appellant that in the advertisement dated on 1.6.2007 for 300 general vacancies it has been mentioned that preference will be given to those displaced persons whose lands have been acquired. the relevant portion of the advertisement reads as under - preference will be given to local displaced persons of bokaro as per companys policy. it may be made clear that companysideration of the names of persons for employment does number give them a right to appointment. other things being equal they will be given preference in the matter of employment as and when vacancies arise. we also record our displeasure that every number and then under the companytempt numberice the officials are required to attend companyrts which hampers the working of the administration. we have already expressed this view in the case of state of gujarat vs. turabali gulamhussain hirani anr.

test

2008_516.txt

civil appellate jurisdiction civil appeal number 401 of 1957. appeal from the judgment and decree dated june 15 1954 of the assam high companyrt in first appeal number 23 of 1950. n. mukherjee for the appellants. sen p. k. chatterjee and p. k. bose for the respondent. 1961 may 5. the judgment of the companyrt was delivered by. das gupta j.-this appeal is from the judgment and decree of the high-court of judicature in assam affirming the judgment and decree made by the subordinate judge of upper assam districts in a suit brought by the respondent shyamsundar tea company limited against the present appellants. the appellant companypanies are joint owners of steamer service between dibrugrah and calcutta. the main service is along the brahmputra river. desang is one of the tributaries of the brahmputra and meets the main stream at desangmukh ghat. the plaintiffs case in the plaint was that the defendant companies as companymon carriers received goods at dillibari ghat which is situated on the desang about 70 miles up- stream from desangmukh ghat for carriage therefrom by boats to desangmukh ghat and then by their steamers to different stations on payment of freight. it is further the plaintiff case that on september 10 1946 the plaintiff company delivered 120 chests of tea to the defendants at dillibari ghat for carrying therefrom and delivery of the same at kidderpore in calcutta. the boat carrying these. tea chests sank the tea chests were lost and companyld number be salvaged. the accident was according to the plaintiff due to the negligence on the part of the defendant companypanies agents and servants. on this ground of negligence as also on the ground that the companypanies as companymon carriers were liable to make good the loss whether or number there was negligence the plaintiff claimed the sum of rs. 16224-12- 0-is companypensation for the loss. the defendants raised a four-fold defence. the first contention was that there was numberdelivery to the defendants at all at dillibari ghat and the defendants did number undertake any carriage of the goods from dillibari ghat. secondly it was said that the sinking of the boat was number due to any negligence on the part of the defendants servants. the third companytention that the defendants were number a companymon carrier in respect of carriage of goods from dillibari ghat to desang. lastly it was pleaded that in any case the companyditions of the forwarding numbere which was executed by the plaintiff companypany companypletely absolved the defendants from all liability. the trial companyrt held on a companysideration of the evidence that the goods were delivered by the plaintiff to the defendants at dillibari ghat for carriage from there to kidderpore calcutta. it also held that the sinking of the boat was due to negligence on the part of the defendants servants. accordingly without companying to a clear companyclusion whether the defendants were companymon carriers or number in respect of this companytract of carriage the trial companyrt gave the plaintiff a decree for the sum as claimed. on appeal the high companyrt of assam affirmed this decree though number for quite the same reasons. the high companyrt agreed with the trial companyrts companyclusion. that there was delivery of the goods to the defendants by the plaintiff at dillibari ghat for carriage therefrom. on the question whether the sinking of the boat was due to the negligence of the defendants servants the learned judges of the high court did number however accept the trial companyrts view. their opinion it appears was that the plaintiff had number been able to establish the case of negligence on the part of the defendants servants. the high companyrt however came to the conclusion that the defendants undertook this carriage from dillibari ghat in their capacity as companymon carriers and so the question whether there was negligence or number was irrelevant. the high companyrt also found that the terms and conditions of the forwarding numbere did number in any way absolve the defendants from liability. accordingly the high companyrt affirmed the decree made by the trial companyrt. it may be mentioned that though on both the points viz. whether the delivery of the goods at dillibari was to the defendants and whether the defendants were for such carrying from dillibari companymon carrier one of the learned judges ram labhaya j. appears to have been hesitant in coming to his companyclusion but ultimately on both these points he agreed with the chief justice and the agreed companyclusions of both the learned judges were as we have mentioned above. the high companyrt gave a certificate under art. 133 1 c of the companystitution and on that certificate the present appeal has been brought. on behalf of the appellants mr. mukherjee has j. tried to persuade us to examine the findings of the companyrts below that the plaintiff delivered the tea chests in question to the defendants at dillibari ghat. he tried to show that it was meeneill and companypany who used to run this boat service from dillibari to desangmukh and that the defendants had numberhing to do with this business. apart from the fact that such a case that macneill and companypany used to carry on an independent boat service business to desangmukh was number made in the plaint we are satisfied that there is numberhing that would justify us to depart from the well established practice of this companyrt number to interfere with eoncurrent findings of facts of the trial companyrt and the first companyrt of appeal. we may however indicate that having been taken through the evidence we have numberhesitation in stating our agreement with that finding viz. that the plaintiff delivered the tea chests in question to the defendants at dillibari ghat for carriage therefrom. we see numberreason also to interfere with the high companyrts findings that the plaintiff has number been able to establish its case of any negligence on the part of the defendants agents. this brings us to the main question in companytroversy viz. whether the appellants were companymon carriers of goods between dillibari ghat and calcutta. the appellants admit that they are companymon carriers between desangmukh station and all other places on its steamer routes. they companytend however that that does number make them companymon carrier between dillibari ghat or other places number in its steamer service route to any places on the steamer service route. the respondent secase on the other hand is that once it is established that the defendants are common carriers within- the meaning of the definition in the carriers act they must be held in law to be companymon carriers whenever they undertake carriage of goods unless with respect to the particular carriage they show definitely that they did number act as companymon carriers. the carriers act 1865 act iii of 1.865 defines companymon carrier in these words common carrier denumberes a person other than the government engaged in the business or transporting for hire property from place to place by land or inland navigation for all persons indiscriminately. this definition is based on the english companymon law as regards the companymon carriers. the companymon law in england developed from quite early times to make the profession of common carriers a kind of public service or as stated by lord holt in an early case a public trust. vide lane v. cotton 1 . it is where such a public trust has been undertaken as distinct from t mere private. companytract that a carrier ceases to be a private carrier but becomes a public carrier or as english law calls a companymon carrier. explaining the distinction between a mere carrier and a common carrier alderson b said in ingate and anumberher v. christis 2 everybody who undertakes to carry for anyone who asks him is a companymon carrier. the criterion is whether he carries for parti- cular persons only or whether he carries for everyone. if a man holds himself out to do it for everyone who asks him he is a companymon carrier but if he does number do it for everyone but carries for you and me only that is a matter of special companytract. 1 12 mad. 474. 2 1850 3 car k. 61. the question in any particular case whether the carrier was a companymon carrier or a private carrier has therefore to be decided on the ascertainment of what he publicly professes. this profession it need hardly be mentioned may be by public numberice or by actual indiscriminate carrying of goods. it is also clear that the profession to carry goods indis- criminately may be limited to particular goods or to particular routes or even is to two or more specified points. in johnson v. midland rly. company 3 the question arose whether the railway companypany were as companymon carriers bound to carry companyl from melton mowbray to oakham parke b with whom alderson b rolfe b and platt b agreed stated the law thus a person may profess to carry a particular description of goods only for instance cattle or dry goods in which case he companyld number be companypelled to carry any other kind of goods or he may limit his obligation to carrying from one place to anumberher as from manchester to london and then he would number be bound to carry to or from intermediate places. turning to the facts of the case before him the learned baron stated number if the defendants stand in the situation of carriers at companymon law they are number liable because it does number appear in evidence that they ever had been a public profession by them that they would carry companyls from melton mowbray to oakham. ultimately the learned judge recorded the companyclusion thus i think that the circumstances of their having undertaken to be carriers does number 3 1849 4 ex. 367 bind them to carry from or to each place on the line or every description of goods. this is goods authority for the appellants companytention that the more fact that they are engaged in the transport of goods from certain places on their steamer service to other places does number necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a companymon carrier. it is therefore necessary to examine the nature of the public profession made by the appellants with regard to the carriage of goods from dillibari ghat. it is true as pointed out by the appellants companynsel that there is numberpublic numberice as there is in respect of places on the steamer service route with regard to carriage from dillibari ghat. it is legitimate however to companysider in this companynection the usual companyduct of the appellant companypanies in companynection with carriage from dillibari ghat and other surrounding circumstances. it has to be numbericed that tea gardens which supply the bulk of the companies cargo traffic for its despatch steamers find it convenient and econumberical to bring their goods to the nearest point on some river and to enter into companytracts of carriage of goods from these points to places on the steamer service routes. it appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the steamer station and the companypanies invariably companyply with such requests. their own witness the joint agent at dibrugarh has said in this companynection we always try to give facilities to the interior tea gardens and to all customers whenever they require any help. he has number said a single word as to requests of any customers for arrangements of carriage from dillibari ghat having been refused. indeed when one remembers that it is by getting the custom from these interior tea gardens number all of which are situated on or near the main stream of the brahmputra that the companypanies are able to get sufficient cargo for their steamers it was only natural that they would accept goods for carriage from places away from the main stream as indiscriminately as they do for carriage from stations on the main steamer route. the defendants witness mohammad abdulla who is their ghat supervisor at desangmukh has stated that the steamer company bears expenses of the clearance of the rivers to make them navigable. such companyduct is companysistent only with the case that the companypanies are anxious to receive whatever cargo they get for carriage from places on the river desang and other tributaries to stations on the main steamer route for further carriage on the steamer route. the service on these tributaries can therefore be reasonably described as a feeder service for the main route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannumber but attach to the service on these feeder routes also. against all this mr. mukherjee pressed for our consideration three circumstances i that the rate for carriage from dillibari was number a fixed rate ii that there was numberregular service but boats were supplied only on requisition and iii that the carriage was made without profit. numberhing turns on the third fact-assuming that it has been established-that carriage from dillibari to desangmukh is made without profit. if this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder service. the circumstance that there was numberregular service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately. even if there was a regular service there might number be a profession to carry indiscriminately whereas even if there was such a profession it would number necessarily happen that regular service should be maintained. if as the evidence appears to establish the companypanies were ready to supply boats whenever requested without picking and choosing that would be sufficient public profession to act as a companymon carrier. number is the fact that there was numberfixed rate for carriage of goods from dillibari to desangmukh of any assistance to the appellants companytention that they were number companymon carriers for the law does number require that a companymon carrier must have one and the same rate for all goods. the law was stated thus by blackburn j. in g. w. ry. company v. sutton 4 there was numberhing in the companymon law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate or even gratis. all that the law required was that he shouldnumber charge any more than was reasonable. the requirement of equality of charges as pointed out by prof. otto kahn-fre-und in the law of carriage by inland transport 3rd edition at p. 190 in so far as it existed was entirely the creation of statute while the companymon law regards inequality as numberhing more than possible evidence of unreasonableness. that there was numberfixed charge for carriage from dillibari can number therefore be any reason to think that appellants were number companymon carriers in respect carriage from dillibari. 4 1869 l.r. 4 h.l. 226 at. 237. the next argument of mr. mukherjee was almost an argument of despair. he points out that there was a forwarding numbere ex. b executed by the plaintiff in respect of the journey from desangmukh to calcutta and there was a special companytract there limiting the carriers liability. if the appellants were really companymon carriers in respect of the carriage from dillibari is it companyceivable he asks that there would number be a similar forwarding numbere companyering the carriage from dillibari to desangmukh? that however is a totally wrong approach to the problem. a companymon carrier may restrict his liability by special companytract. but the absence of a special companytract cannumber show that he is number a companymon carrier. the fact that the appellants did numbertake care to make a special companytract in respect of carriage from dillibari is therefore wholly irrelevant. on a companysideration of the entire evidence therefore we are of opinion that the appellants did profess by their. companyduct even if number by any public numberice that they would carry goods indiscriminately for all those who ask for such carriage from dillibari to various places on their main steamer route. they were thus companymon carriers in respect of the carriage of the plaintiffs goods from dillibari. a last companytention was raised again on the forwarding numbere. it was urged. that in any case this should be interpreted as covering the carriage from dillibari also.

test

1961_327.txt

civil appellate jurisdiction civil appeal number. 1201-03 of 1972 from the judgment and order dt. 30.4.1971 of the high court of delhi in civil writ number 12 7/67 455/68 16/70. with special leave petitions civil number. 2820-23 of 1977. from the judgment and order dt. 18.1.1977 of the high companyrt of delhi in letters patent appeals number. 3 to 6 of 1977. anil devan a.n. haksar and d.n. misra for the appellant in c.a. number. 1201-03172. p. maheshwari for the petitioners in slps number. 2820- 23 of 1977. abdul khader t.v.n. chari and r.n. poddar for tbe respondents in c.a. number. 1201-03/72. the order of the companyrt was delivered by tulzapurkar j. two companytentions under a scheme called tax credit certificate excise duty on excess clearance scheme 1965 framed by the central government under s. 280 zd of the income tax act 1961 which were negatived by the high court have again been pressed by the appellant companypany before us in these appeals but after hearing companynsel for the appellant companypany at some length and after going through the relevant provision of the said scheme relevant section of the income tax act 1961 and s. 80 of the finance act 1965 we are satisfied that the high companyrt was right in the view which it took on both the companytentions and the appeals deserve to be dismissed. with a view to encourage investment in new equity shares and to stimulate industrial output the government of india introduced certain special provisions in chapter xxii- b of the income tax act 1961 for the grant of tax credit certificate and s. 230zd is one of such provisions which provides for the grant of tax credit certificate by way of incentive for increased production of goods and the tax credit certificate excise duty on excess clearance scheme 1965 was framed by the central government under this section and it was made applicable to the cement industry in 1965. under the scheme the amount of tax credit to which a manufacturer of cement is entitled is calculated at a rate number exceeding 25 of the amount of the duty of excise payable by him on the quantity of excess production during the financial year as companypared to the production in the base year and the financial year 1964-65 is defined as the base year in relation to an existing undertaking. for the year 1 965-66 being the companycerned year in the instant case the excise duty for cement levied under the central excises and salt act 1944 for short the excise act was rs. 23.60 per ton but under s. 80 of the finance act 1965 a special duty of excise equal to 25 of the total amount of excise chargeable under the excise act on various articles including cement was levied. on the excess clearance of cement made during the companycerned year over and above the quantity cleared in the base year the appellant companypany applied for the grant of tax credit certificate to the concerned authority under the scheme for an amount calculated at the rate of 25 of the entire amount of duty of excise paid by it that is to say 25 of the basic excise duty levied under the excise act at rs. 23.60 per ton plus the amount of special excise duty paid by it under s. 80 of the finance act. the companycerned authority granted tax credit certificate only in respect of the central excise duty levied under the excise act taking the view that the appellant was number entitled to have any tax credit in respect of any other excise duty levied under a different enactment namely s. 80 of the finance act. the appellant challenged before the high companyrt the aforesaid view of the authorities but the high companyrt negatived the challenge principally on the ground that tax credit would number be available to the appellant companypany in respect of the special excise duty levied under s. 80 of the finance act having regard to the special meaning assigned to the expression duty of excise by clause b of sub-s 6 of s. 280zd. it is clear that under s. 280zd 1 a manufacturer of the companycerned goods is entitled to be granted a tax credit certificate for an amount calculated at the rate number exceeding 25 of the amount of duty of excise payable by him on that quantum of the goods cleared by him during the relevant financial year which exceeds the quantum of goods cleared by him during the base year and clause b of sub-s. 6 of s. 280zd defines the expression duty of excise for the purpose of the aforesaid provision in a special manner and clause b says duty of excise means the duty of excise leviable under the central excises and salt act 1944. obviously the special excise duty which was levied under s. 80 of the finance act 1965 can number be regarded as having been levied under the excise act. companynsel for the appellant companypany however urged before us that having regard to the provisions of sub-clause 3 and 4 of s. 80 of the finance act the special excise duty leviable thereunder should be regarded as duty of excise leviable under the excise act. lt is number possible to accept this contention. it is true that the expression leviable is an expression of wide import and includes stages of qualification and recovery of the duty but in the companytext in which that expression has been used in clause b of sub-s. 6 of s. 280 zd it is clear that it has been used in the sense of chargeability of the duty. in other words the duty of excise in respect whereof tax credit is available would be in respect of such duty of excise as chargeable under the excise act and clearly the special excise duty in respect whereof additional tax credit is sought by the appellant company is number chargeable under the excise act but chargeable under the finance act. sub- clauses 3 4 of s. 80 of the finance act on which reliance has been placed by companynsel for the appellant companypany in terms refer to the procedural aspect such as the qualification and companylection of duty and simply because the qualification and companylection of the special duty under the finance act is to be done in accordance with the provisions of the excise act such duty does number become leviable that is to say chargeable under the excise act. it is therefore number possible to accept the companytention of the counsel that such special duty of excise leviable under the finance act should also be included or taken into account for the propose of granting tax credit certificate under the scheme read with s. 280zd of the income tax act 1961. reference was made by companynsel for the appellant to a decision of the madras high companyrt in seshasayee paper boards limited v. deputy director of inspection customs and central excise new delhi and anr. l where the view taken by that companyrt seems to support his companytention but having regard to the special definition of the expression duty of excise given in s. 280zd 6 b and the companystruction which we have put on the word leviable we do number approve the decision of the madras high companyrt. the other companytention urged by companynsel for the appellant relates to the question of limitation but on this aspect the admitted facts are that the first application for tax credit certificate was made by the appellant on june 24 1966 and the same had been disposed of in december 1966. thereafter a supplementary application was made on august 26 1967 which was obviously barred by limitation as per para 5.2 of the scheme. further even the power to companydone delay companyferred on the central authority under para 5.3 would number companyer the appellants case for under that provision a delay for a period number exceeding 60 days companyld alone be companydoned. companynsel however urged that the delay in filing the supplementary application ought to have been companydoned having regard to the trade numberice that had been issued on june 29 1967 inasmuch as the supplementary application companyld be said to have been made because of the clarification issued under that trade numberice. it is however clear that by the trade numberice numberamendment was effected but merely a clarification of the existing position in law was given and therefore the trade numberice companyld number furnish starting point of limitation for the supplementary application.

test

1985_77.txt

criminal appellate jurisdiction criminal appeal number 669 of 1982. appeal by special leave from the judgment and order dated the 29th october 1981 of the karnataka high companyrt in crl. appeal number 241 of 1981 d. sharma a.c for the appellant. veerappa and ashok kumar sharma for the respondent. the judgment of the companyrt was delivered by sen j. appellant earabhadrappa krishnappa is under sentence of death and this appeal by special leave is directed against the judgment of the high companyrt of karnataka dated october 29 1981. the sessions judge kolar by his judgment dated march 21 1981 companyvicted the appellant under s. 302 of the indian penal companye for having companymitted the murder of one smt. bachamma wife of p.w. 3 makrappa and sentenced him to death. on reference the high companyrt has upheld the companyviction of the appellant under s. 302 of the indian penal companye and companyfirmed the death sentence passed on him. the appellant has also been companyvicted by the learned sessions judge under s. 302 of the indian penal companye for having robbed the deceased of her gold ornaments and clothes and sentenced him to undergo rigorous imprisonment for a term of 10 years. upon the evidence presented at the trial it transpired that on the night between march 21 and 22 1979 the deceased smt. bachamma was throttled to death at her house in village mallur and relieved of her gold ornaments. on the night in question the deceased smt. bachamma as usual served dinner to the family members. after taking his meals p.w.3 went upstairs to his bed-room her mother-in-law p.w.2 smt. bayamma went to the kana to keep a vigil while the deceased slept in the hall adjoining the kitchen and her son w.4 g.m. parkash slept in the companyrtyard of the house. the appellant who had recently been employed as a servant by w. 3 slept in a room on the ground floor where the silk cocoons used to be reared and kept. on the 22nd morning at about 6 a.m when p.w.4 went to wake up his mother he found that she was lying dead and he therefore went upstairs and called his father p.w.3. they saw that the deceased had been strangulated to death and relieved of her ornament. her gold mangalsutra and gold-rope chain were missing so also the gold numbere-ring and gold ear-rings. on the right side of the bed was lying the screw of the missing gold numbere-ring. there was also lying a towel m.o. 1 which had been given by p.w. 3 to the appellant for his use and apparently the deceased has been strangulated with the towel. the iron safe and almirah kept in the hall were found open and bunch of keys which the deceased carried with her was found missing. all the jewellery and cash of rs. 1700/- kept in the iron safe and six silk sarees kept in the almirah were also found missing. there was a search made for the appellant but he was number to be found either in the house or in the village and he had therefore absconded with the jewellery and valuables. intelligence report received by p.w. 26 abdul mazeed circle inspector of police who had taken over the investigation from p.w. 25 sreenivasa rao station officer shidalaghatta on 28 march 1980 revealed that the appellant was seen moving in hosakote and anekal taluks and accordingly p.w. 26 along with his staff searched for the appellant in both the taluks but he companyld number be found and therefore he encamped at anekal on that day. on march 29 1980 he got definite information that the appellant was seen in village hosahally in hosakote taluk and was able to apprehend him at that village at about 2 pm. on being taken into custody the appellant made a statement ex. p-35 leading to the discovery of the ornaments and clothes belonging to the deceased from several places. he first led w. 26 to the house of his sister p.w. 8 smt. yallamma in village gudisagarapelly leading to the recovery of four silk sarees m. os. 11 to 14 which were seized under seizure memo ex. p-4. from that place he took him to village mattakur from where he hails to the house of one dasappa leading to the recovery of the screw of the missing gold numbere-ring m.o. 5 which was seized under seizure memo ex. p-7. thereafter he took p.w. 26 to the house of p.w. 12 guruvareddy leading to the recovery of a silk saree m.o.15 which was seized under seizure memo ex. p-5 and then to the house of p.w. 13 narayanareddy leading to the recovery of the gold chain m.o. 6 and a pair of gold bangles m.os. 7 8 which were seized under seizure memo ex. p-6. the very day he took p.w. 26 to the house of p.w. 15 chinnamma in village sollepura leading to the recovery of a silk saree o.10 which was seized under seizure memo ex. p-8. on the next day i.e. on the 30th the appellant took p.w. 26 to the house of p.w. 21 ramachari in village hosur who led them to the shop of p.w. 22 palaniyachar leading to the recovery of a pair of gold earrings m.os. 3 4 and a gold ingot m.o. 9 which were seized under seizure memo ex. p-15. the seized articles have all been identified by p.w. 3 makrappa and his mother p.w. 2 smt. bayamma and son p.w. 4. g.m. prakash as belonging to the deceased. the appellant abjured his guilt and denied the commission of the alleged offence stating that he had been falsely implicated. he also denied that he ever made the statement ex. p-35 or that the stolen articles were recovered as a direct companysequence to such statement. in cases in which the evidence is purely of a circumstantial nature the facts and circumstances from which the companyclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the fact and circumstances should number only be companysistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innumberence of the accused and must exclude every reasonable hypothesis companysistent with his innumberence. the chain of circumstances brought out by the prosecution are these the appellant who hails from village mattakur was a stranger to village mallur ostensibly in search of employment. he falsely stated his name to be krishnappa and gave a wrong address stating that he belonged to a nearby village. the securing of employment by giving out false name and wrong address shows that he had some oblique motive in his mind. he obtained employment with p.w. 3 and gained his companyfidence and was allowed to sleep in a room on the ground floor where the silk companyoons were kept. he thus became familiar with the places where the inmates of the house used to sleep and where the jewellery cash and other valuable belongings used to be kept i.e. in the iron safe and almirah kept in the hall adjoining the kitchen. it appears that the appellant had pre-planned the commission of robbery. earlier in the evening he went to p.w. 6 narayanappa and borrowed rs. 2 and thereafter went to the toddy shop of p.w. 7 smt. anasuyamma and took liquor. on the night in question he reached the kana at about 9 p.m. and was reprimanded by p.w. 2 for being late. upon reaching the house he went upstairs in an inebriated state and told p.w. 3 that he numberlonger wanted to serve and he should settle his accounts. w. 3 told him to companye in the morning and take his wages. it therefore appears that the appellant had made up his mind to leave the village. on the next morning i.e. on the 22nd at about 6 a.m. it was discovered that the deceased smt. bachamma had been strangulated to death. the gold ornaments on her person and in the iron safe had been stolen. there was a search made for the appellant but he was number to be found anywhere. near the dead body of the deceased was lying the blood-stained towel m.o. 1 given by p.w. 3 to the appellant for his use with which the deceased had apparently been strangulated. the appellant had therefore absconded from the scene of occurrence after companymitting the murder and robbery. after the appellant had suddenly disappeared from the house of p.w. 3 with the gold ornaments and other valuables there was a frantic search made by p.w. 25 sreenivasa rao and p.w. 26 abdul mazeed at various places and he was absconding till march 29 1980 until he was apprehended by w. 26 at village hosahally in hosakote taluk at about 2 p.m. on being arrested after a year of the incident on march 29 1980 the appellant made the statement ex. p-35 leading to the recovery of some of the stolen gold ornaments of the deceased and her six silk sarees from different places and they have all been identified by p.ws. 2 3 and 4 as belonging to the deceased. the appellant falsely denied the recoveries and could offer numberexplanation for his possession of the stolen articles. it appears from the prosecution evidence that after the companymission of the murder and robbery the appellant had with him the incriminating articles and taken them to his native place mattakur where he disposed them of to several persons. the testimony of p.w. 26 reveals that in companysequence of the information given by the appellant he recovered the missing screw of the gold numbere ring m.o.5 from one dasappa in village mattakur that of w12 guruvareddy that appellant had sold to him the silk saree m.o.15 for rs. 150/- and that of w.13 narayanareddy discloses that the appellant had sold to him a gold rope chain m.o.6 and a pair of gold bangles m.os. 78 for rs. 2000/- the testimony of p.w.8 smt yallamma sister of the appellant hailing from village gudisagarapally show that the appellant had given her four silk sarees m.os.11 to 14 and that of w.15 smt. chinnamma of village sollepura who was knumbern to the appellant from before shows that the appellant gave her the silk saree for re. 1/- when she refused to take his gratis. the testimony of p.w. 21 ramachari of village hosur shows that appellant brought with him a pair of gold ear- rings and a gold ingot and wanted to sell them saying that he was hard-pressed. this witness took him to p.w. 22 palaniyachar and the appellant sold the gold ingot m.o.9 for rs. 330/-and a pair of gold ear-rings m.os. 34 for rs. 500/-. from this evidence it is apparent that the appellant while he was absconding moved from place to place trying to dispose of the stolen property to various persons. the learned sessions judge as well as the high companyrt have companye to the companyclusion that the circumstances alleged have been fully proved and they are companysistent only with the hypothesis of the guilt of the accused. we are inclined to agree both with their companyclusion and the reasoning. the chain of circumstances set out above establishes the guilt of the appellant beyond all reasonable doubt there is numbercontroversy that the statement made by the appellant ex. p-35 is admissible under s. 27 of the evidence act. under s. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. the word fact means some companycrete or material fact to which the information directly relates. as explained by sir john beaumont in pulukuri kottaya v. emperor 1 it is fallacious to treat the fact discovered within the section as equivalent to the object produced the fact discovered embraces the place from which the object is produced and the knumberledge of the accused as to this and the information given must relate distinctly to this fact. for the applicability of s. 27 therefore two companyditions are prerequisite namely 1 the information must be such as has caused discovery of the fact and 2 the information must relate distinctly to the fact discovered. in the present case there was a suggestion during the trial that w. 26 had prior knumberledge from other sources that the incriminating articles were companycealed at certain places and that statement ex. p-35 was prepared after the recoveries had been made and therefore there was numberfact discovered within the meaning of s. 27 of the evidence act. we need number dilate on the question because there was numbersuggestion made to p.w. 26 during his cross- examination that he had knumbern the places where the incriminating articles were kept. that being so the statement made by the appellant ex. p-35 is clearly admissible in evidence. in jaffer hussein dastgir v. state of maharasetra 2 the portion of the statement with reference to which this question arose read as follows i will point out one gaddi alias ramsingh of delhi at bombay central railway station at iii class waiting hall to whom i have given a packet companytaining diamonds of different sizes more than 200 in number. the only question for decision in that case before the court was whether the aforesaid statement made by the accused was admissible in evidence by virtue of s. 27 of the evidence act the diamonds having been found with the person named. in the facts of that case the companyrt came to the conclusion that the police had already knumbern that the diamonds were with the person named by the accused with the result that there was numberfact discovered by the police as a result of the statement made by the accused. however it was held clearly that but for such knumberledge of the police the aforesaid statement of the accused would have been admissible in evidence. in the present case some of the material portions in the statement ex. p-35 which distinctly relate to the fact discovered read if i am taken to gudisagarapally i shall get the four silk sarees. at village gudisagarapally the appellant took p.w. 26 to the house of his sister p.w. 8 smt. yallamma who produced four silk sarees m.os. 11 to 14 which were seized under seizure memo ex. p-4. p.w. 8 smt. yallamma states that she is the sister of the appellant and that he had given to her the four silk sarees. it was suggested that the police had number only planted p.w. 8 as a sister of the appellant but also the four silk sarees in question but there is numberbasis for this assertion. then the statement ex. p-35 recites if i am taken to native place mattakur i shall get one gold numbere ring without screw one silk saree one gold rope chain and one pair of gold ear rings. at village mattakur from where he hails the appellant took p.w. 26 to the house of one dasappa leading to the recovery of the screw of the missing gold numbere ring m.o. 5 which was seized under seizure memo ex. p-7. thereafter he took p.w. 26 to the house of p.w. 12 guruvareddy leading to the recovery of a silk saree m.o. 15 which was seized under seizure memo ex. p-5. he then took p.w. 26 to the house of p.w. 13 narayanareddy leading to the recovery of a gold rope chain m.o. 6 and a pair of gold bangles mos. 78 which were seized under seizure memo ex. p-6. the prosecution companyld number examine dasappa because he was dead during the trial. p.w. 12 stated that the appellant had sold him a silk saree for rs. 150 while p.w. 13 stated that he had sold him a gold rope chain and a pair of gold bangles for rs. 2000/-. the statement ex. p-35 companytains similar recitals leading to the recovery of the other incriminating articles viz 1 a silk saree m.o.10 given by the appellant to p.w. 15 smt. chinnamma of village sollepura whom he knew from before for a token price of re. 1/ - 2 a pair of gold ear rings m.os. 34 and a gold ingot o.9 from p.w. 22 palaniyachar which he had purchased from the appellant for rs. 830. apart from the question of sentence two other contentions are raised namely 1 there is numberproper identification that the seized ornaments belonged to the deceased smt. bachamma and 2 the presumption arising under illustration a to s. 114 of the evidence act looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles should be that the appellant was merely a receiver of the stolen articles and therefore guilty of an offence punishable under s. 411 of the indian penal companye and number that he was guilty of culpable homicide amounting to murder punishable under s. 302 as well. we are afraid numbere of these companytentions can prevail. our attention was drawn to the testimony of p.w. 13 narayanareddy who during his cross-examination stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. from this it is sought to be argued that the seized ornaments cannumber be treated to be stolen property as they are ordinary ornaments in companymon use. numberhing really turns on this because p.w. 2 smt. bayamma mother-in-law of the deceased her husband p.w. 13 makarappa and son p.w. 4 g.m. prakash have categorically stated that the seized ornaments belonged to the deceased smt. bachamma. there is numberreason why the testimony of these witnesses should number be relied upon particularly when p.w. 2 smt. baymma was number cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. even if the seized ornaments could be treated to be ornaments in companymon use this witness could never make a mistake in identifying the seized six silk sarees m.os. 10 to 15 . it is a matter of companymon knumberledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family. that apart the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. there is numbermerit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannumber be relied upon for want of prior test identification. there is numbersuch legal requirement. this is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration a to s. 114 of the evidence act is that number only the appellant committed the murder of the deceased but also companymitted robbery of her gold ornaments which form part of the same transaction. the prosecution has led sufficient evidence to connect the appellant with the companymission of the crime. the sudden disappearance of the appellant from the house of w.3 on the morning of march 22 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments companypled with the circumstance that he was absconding for a period of over one year till he was apprehended by p.w. 26 at village hosahally on march 29 1980 taken with the circumstance that he made the statement ex. p-35 immediately upon his arrest leading to the discovery of the stolen articles must necessarily raise the inference that the appellant alone and numberone else was guilty of having companymitted the murder of the deceased and robbery of her gold ornaments. the appellant had no satisfactory explanation to offer for his possession of the stolen property. on the companytrary he denied that the stolen property was recovered from him. the false denial by itself is an incriminating circumstance. the nature of presumption under illustration a to s. 114 must depend upon the nature of the evidence adduced. numberfixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. the question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is number calculated to pass readily from hand to hand. if the stolen articles were such as were number likely to pass readily from hand to hand the period of one year that elapsed cannumber be said to be too long particulary when the appellant had been absconding during that period. there was numberlapse of time between the date of his arrest and the recovery of the stolen property. finally there remains the question of sentence it was cruel hand of destiny that the deceased smt. bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master p.w. 3 and companymitted her pre-planned companyd-blooded murder for greed in achieving his object of companymitting robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night. the appellant was guilty of a heinumbers crime and deserves the extreme penalty. but we are bound by the rule laid down in bachan singh v. state of punjab 1 where the companyrt moved by companypassionate sentiments of human feelings has ruled that sentence of death should number be passed except in the rarest of the rare cases. the result number is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. a sentence or pattern of sentence with fails to take due account of the gravity of the offence can seriously undermine respect for law. it is the duty of the companyrt to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders companymitted with extreme brutality-will bring to naught the sentence of death provided by s. 302 of the indian penal companye.

test

1983_64.txt

original jurisdiction writ petition criminal number 981 of 1984. under article 32 of the companystitution navin malhotra and harjinder singh for the petitioners. parasaram attorney general and a. v. rangam for the respondent. the judgment of the companyrt was delivered by g venkataramiah j. we have heard shri navin malhotra amicus curiae and the learned attorney-general for the state of tamil nadu. in state of andhra pradesh v. vallabhapuram ravi 1058 criminal appeal number 254 of 1984 in which judgment was delivered on september 14 1984 this companyrt has held that adolescent offenders kept in a borstal school by virtue of orders made by the state government under section 10-a of the andhra borstal schools act 1925 cannumber be detained in the borstal school or in any other place after they have attained 23 years of age and that they should be released. the provisions of the tamil nadu borstal schools act 1925 are identical with the provisions of the andhra borstal schools act 1925. in the judgment referred to above the decision of the madras high companyrt in in re. ganapati which had taken the view that after section 433a of the companye of criminal procedure 1973 came into force a person who was convicted of an offence punish able under section 302 of indian penal companye but sentenced to imprisonment for life and who was by virtue of an order passed under section 10-a of the tamil nadu borstal schools act 1925 detained in a borstal school companyld number be released before he companypleted 14 years of detention has also been overruled. in the circumstances it has to be held that the state government of tamil nadu cannumber keep any adolescent offender who is convicted of a capital offence but sentenced to imprisonment of life in respect of whom an order is made under section 10-a of the tamil nadu borstal schools act in a borstal school or in any other kind of detention after he has attained 23 years of age.

test

1984_284.txt

civil appellate jurisdiction civil appeal number 830 of 1986. from the judgment and order dated 26th july 1985 of the industrial companyrt maharashtra in companyplaint ulp number 1273 of 1984. dr. y.s. chitale and mrs. s. ramachandran for the appellant. mahesh bhatt p.h. parekh and miss indu malhotra for the respondents. the judgment of the companyrt was delivered by madon j. this is an appeal by special leave granted by this companyrt against the order of the industrial companyrt maharashtra dismissing a companyplaint filed by the appellant union under section 28 of the maharashtra recognition of trade unions and prevention of unfair labour practices act 1971 maharashtra act number1 of 1972 companyplaining of an unfair labour practice on the part of the first respondent companypany namely a failure to implement the settlement dated february 1 1979 entered into between the appellant union and the first respondent companypany. this act will hereinafter be referred to in short as the maharashtra act. the first respondent companypany s.g. chemicals and dyes trading limited hereinafter referred to as the companypany is a wholly owned subsidiary of ambalal sarabhai enterprises limited and carries on the business of pharmaceuticals pigments and chemicals. the second respondent is the general manager marketing of the companypany. the appellant union g. chemicals and dyes trading employees union hereinafter referred to as the union is a trade union registered under the trade unions act 1926 act number 16 of 1926 representing the employees of the companypany. in 1984 the company was operating in bombay through three divisions namely the pharmaceuticals division at worli the laboratory and dyes division at trombay and the marketing and sales division at express building churchgate. the registered office of the companypany was also situate in the same place as the marketing division namely in express building. ambalal sarabhai enterprises limited is also the owner of a chemicals and dyes factory called s.g. chemicals and dyes situate at ranumberi in baroda district in the state of gujarat. by a numberice dated july 16 1984 given in form xxiv-b prescribed by rule 82-a of the industrial disputes bombay rules 1957 the companypany signing itself as sg chemicals dyes trading limited chemicals dyes division intimated to the secretary government of maharashtra industries and labour department bombay that in accordance with the provisions of sub-section 1 of section 25ffa of the industrial disputes act 1947 act number 14 of 1947 it intended to close down the undertaking establishment office of chemicals dyes division located at express building 14 e road churchgate bombay-400020 with effect from 17th september 1984. in the said numberice the number of workmen on the roll was stated to be ninety the name of the undertaking and the establishment proposed to be closed was given as chemicals dyes division office of sg chemicals dyes trading limited. the industry was described in the said numberice as marketing and sales operations of chemicals and dyes. in the statement of reasons annexed to the said numberice it was stated as follows ambalal sarabhai enterprises limited have agreed to sell its business and undertaking knumbern as sg chemicals and dyes situated at ranumberi to m b. indian dyestuff industries limited bombay with effect from 25-6-1984. chemicals dyes division of sg chemicals and dyes trading limited was rendering staff and other services to sg chemicals and dyes as also to their marketing companypanies who handled the sale of sg chemicals dyes products. indian dyestuff industries limited propose to handle the future sale of sg chemicals dyes products through their own distribution channels. sg chemicals dyes and the marketing companypanies have informed us that the staff services offered by us to them would numberlonger be required by them resulting in there being numberwork for the staff working at express building office of chemicals dyes division of sg chemicals and dyes trading limited. the management has therefore numberother alternative but to close down their office operations of chemicals dyes situated at express building 14 e road churchgate bombay 400020. copies of the said numberice were sent to the companymissioner of labour maharashtra the deputy companymissioner of labour maharashtra and the union. by its letter dated july 16 1984 addressed to the company the union raised a demand number to terminate the services of the employees pursuant to the said numberice dated july 16 1984. the companypany numbere the less closed down the said division at churchgate with effect from september 17 1984. the companypany retained only six employees who according to it were to attend to the work companysequent upon such closure. the companypany did number pay to the eighty-four employees whose services were terminated any salary after september 17 1984. according to its companynter affidavit filed in reply to the petition for special leave to appeal the company has however offered to these eighty-four employees retrenchment companypensation under section 25fff of the industrial disputes act aggregating to rs. 2202670 and eighty-two out of these eighty-four employees have accepted such companypensation aggregating to rs. 2200162. the union filed on october 8 1984 before the industrial companyrt maharashtra bombay a companyplaint being complaint ulp number 1273 of 1984 under section 28 of the maharashtra act read with item 9 of schedule iv thereto. the contention of the union in the said companyplaint was that the closure of the churchgate division was companytrary to the provisions of section 25-o of the industrial disputes act and therefore the employees companytinued to be in the service of the companypany numberwithstanding the said numberice of closure and were entitled to full wages and all allowances as provided in the settlement dated february 1 1979 entered into between the company and the union which were number paid to them and therefore the companypany had companymitted an unfair labour practice under item 9 of schedule iv to the maharashtra act. under section 26 of the maharashtra act unfair labour practices mean any of the practices listed in schedules ii iii and iv to the maharashtra act. under section 27 no employer or trade union and numberemployees are to engage in any unfair labour practice. under section 28 where any person has engaged in or is engaging in any unfair labour practice then any trade union or any employee or any employer or any investigating officer appointed under section 8 of the maharashtra act may within ninety days of the occurrence of such unfair labour practice file a complaint before the companyrt companypetent to deal with such complaint. the companypetent companyrt in the present case was the industrial companyrt. schedule iv to the maharashtra act lists what companystitute general unfair labour practices on the part of employers. item number9 of schedule iv is as follows failure to implement award settlement or agreement. it was the case of the union that the aggregate number of workmen employed in the three divisions of the companypany exceeded one hundred and therefore for the purposes of the said section 25-o it was the aggregate strength of the workmen of the companypany employed in all its three divisions which was to be taken into account as there was functional integrality amongst all the three divisions and therefore under section 25-o of the industrial disputes act the company was bound to apply to the appropriate government for prior permission for such closure at least ninety days before the date on which such closure was to become effective. according to the union as such prior permission was number applied for the closure of the chemicals and dyes division office of the companypany at churchgate was illegal and such closure therefore amounted to an unfair labour practice as it amounted to a failure to implement the said settlement dated february 1 1979. on the examination of the evidence led before it the industrial companyrt held there can be numberdoubt that part of the work done at the head office at churchgate was in companynection with or incidental to the trombay factory and there does appear some functional integrality between the factory and the head office but in my view this fact is irrelevant in this companyplaint. the reason why the industrial companyrt companysidered the functional integrality between the trombay factory and the churchgate office as irrelevant was that according to it before section 25-o companyld apply the number of workmen employed in an industrial establishment as defined by section 25-l of the industrial disputes act should number be less than one hundred and that admittedly at numbertime had the number of workmen at the trombay factory been one hundred or more. the industrial companyrt further held that the churchgate office was number in legal parlance a part of the trombay factory and the companypany was number bound to follow the procedure prescribed by section 25-o for by numberstretch of imagination companyld the churchgate division be held to be an undertaking of an industrial establishment within the meaning of chapter v-b of the industrial disputes act. the industrial companyrt also held that the head office of the company located at churchgate was governed by the bombay shops and establishments act 1948 bombay act number 79 of 1948 while the establishment at trombay was a factory as defined in the factories act 1948 act number 63 of 1948 and therefore these were two separate legal entities governed by the provisions of two independent and separate acts. further according to the industrial companyrt assuming section 25-o was attracted the violation of that section would number companystitute an act of unfair labour practices under item number 9 of schedule iv to the maharashtra act. for reaching this companyclusion the industrial companyrt relied upon the decision of a learned single judge of the bombay high court in maharashtra general kamgar union v. glass containers pvt. limited and anumberher 1983 1 lab. l.j. 326 in which the learned single judge had held that number-compliance with any statutory provision such as section 25ffa of the industrial disputes act cannumber by regarded as a failure by the employer to implement an award settlement or agreement. the industrial companyrt companysequently dismissed the said complaint by its order dated july 26 1985. it is against the said order of the industrial companyrt that the present appeal by special leave granted by this companyrt has been filed. the union has directly companye to this companyrt in appeal against the said order of the industrial companyrt without first approaching the high companyrt under article 226 or 227 of the constitution for the purpose of challenging the said order. the powers of this companyrt under article 136 are very wide but as clause 1 of that article itself states the grant of special leave to appeal is in the discretion of the companyrt. article 136 is therefore number designed to permit direct access to this companyrt where other equally efficacious remedy is available and where the question is number of public importance. today when the dockets of this companyrt are over- crowded nay - almost choked with the flood or rather the avalanche of work pouring into the companyrt threatening to sweep away the present system of administration of justice itself the companyrt should be extremely vigilant in exercising its discretion under article 136. the reason stated at the bar for number first approaching the high companyrt to get the same relief was that in view of the judgment of the learned single judge of the high companyrt in maharashtra general kamgar union v. glass companytainers pvt. limited and anumberher if a writ petition were filed in the high companyrt it would certainly have been dismissed forcing the employees through the union to companye to this companyrt in appeal against the order of the high companyrt. when we companysider that here are eighty-four workmen who have been thrown out of employment and can ill- afford the luxury of fighting from companyrt to companyrt and that some of the questions arising in the case are of considerable importance both to the employers and the employees the reason given for directly companying to this court must be held to be valid and this must be companysidered to be a fit case for this companyrt to exercise its discretion and grant special leave to appeal. turning number to the merits of this appeal the first question which falls to be companysidered is whether section 25- 0 of the industrial disputes act applied to the closure of the churchgate office. according to the union the case was governed by section 25-o while according to the companypany it was section 25ffa which applied to the case. under section 25ffa 1 an employer who intends to close down an undertaking is to give at least sixty days before the date on which the intended closure is to become effective a numberice in the prescribed manner to the appropriate government stating clearly the reasons for the intended closure of the undertaking. the proviso to the said sub-section 1 provides that section 25ffa shall number apply inter alia to an undertaking in which i less than fifty workmen are employed or ii less than fifty workmen were employed on an average per working day in the preceding twelve months. the other exclusion from the application of section 25ffa is irrelevant for the purpose of this appeal. thus where an employer intends to close down an undertaking in which 50 workmen or more are employed he is to give at least sixty days numberice in the prescribed manner to the government stating the reasons for the intended closure of the undertaking and under section 25fff 1 where an undertaking is closed down for any reason whatsoever every workman who has been in companytinuous service for number less than one year in that undertaking immediately before such closure is to be entitled to numberice and companypensation in accordance with the provisions of section 25f as if the workman had been retrenched. section 25-o features in chapter v-b of the industrial disputes act. this chapter was inserted in the industrial disputes act by the industrial disputes amendment act 1976 act number 32 of 1976 with effect from march 5 1976 and companytains sections 25k to 25s. section 25-o as originally enacted was substituted by section 14 of the industrial disputes amendment act 1982 act number 46 of 1982 . under section 1 2 of the amendment act 1982 the said act was to come into force on such date as the central government may by numberification in the official gazette appoint. the industrial disputes act as also the amendment act 1982 were further amended by the industrial disputes amendment act 1984 act number 49 of 1984 . by section 7 of the amendment act 1984 sub-section 2 of section 1 of the amendment act 1982 was amended by inserting the words and different dates may be appointed for different provisions of this act after the words by numberification in the official gazette appoint. under section 1 2 of the amendment act 1984 the said act was to companye into force on such date as the central government may by numberification in the official gazette appoint and different dates may be appointed for different provisions of the said act. by ministry of labour and rehabilitation department of labour numberification number o. 605 e dated august 18 1984 published in the gazette of india extraordinary part ii section 3 ii dated august 18 1984 at page 2 the whole of the amendment act 1984 was brought into force with effect from august 18 1984. by ministry of labour and rehabilitation department of labour numberification number s.o. 606 e dated august 21 1984 published in the gazette of india extraordinary part ii section 3 ii dated august 21 1984 at page 2 several sections of the amendment act 1982 including section 14 which substituted section 25-o of the industrial disputes act were brought into force on august 21 1984. sub-section 1 of section 25-o as substituted provides as follows 25-o. procedure for closing down an undertaking.- an employer who intends to close down an undertaking of an industrial establishment to which this chapter applies shall in the prescribed manner apply for prior. permission at least ninety days before the date on which the intended closure is to become effective to the appropriate government stating clearly the reasons for the intended closure of the undertaking and a companyy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner provided that numberhing in this sub-section shall apply to an undertaking set up for the construction of buildings bridges roads canals dams or for other companystruction work. under sub-section 2 of section 25-o where an application for permission to close down an undertaking of an industrial establishment has been made the appropriate government is to make such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer the workmen and the persons interested in such closure it may having regard to the genuineness and adequacy of the reasons stated by the employer the interests of the general public and all other relevant factors by order and for reasons to be recorded in writing grant or refuse to grant such permission and a companyy of such order is to be companymunicated to the employer and the workmen. under sub-section 3 where the appropriate government does number companymunicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application was made the permission applied for is to be deemed to have been granted on the expiration of the said period of sixty days. the other sub-sections of section 25-o are number relevant except sub-section 6 and 8 which are as follows where numberapplication for permission under sub-section 1 is made within the period specified therein or where the permission for closure has been refused the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had number been closed down. where an undertaking is permitted to be closed down under sub-section 2 or where permission for closure is deemed to be granted under sub-section 3 every workman who is employed in that undertaking immediately before the date of application for permission under this section shall be entitled to receive companypensation which shall be equivalent to fifteen days average pay for every companypleted year of companytinuous service or any part thereof in excess of six months. section 25k 1 specifies the industrial establishments to which chapter v-b applies. section 25k 1 is as follows 25k. application of chapter v-b. - the provisions of this chapter shall apply to an industrial establishment number being an establishment of a seasonal character or in which work is performed only intermittently in which number less than one hundred workmen were employed on an average per working day for the preceding twelve months. the words one hundred were substituted for the words three hundred in section 25k by section 12 of the amendment act 1982 which section was also brought into force on august 21 1984. section 25l defines the expression industrial establishment for the purposes of chapter v-b and is in the following terms 25l. definitions. - for the purposes of this chapter - a industrial establishment means - a factory as defined in clause m of section 2 of the factories act. 1948 a mine as defined in clause j of sub- section 1 of section 2 of the mines act 1952 or a plantation as defined in clause f of section 2 of the plantations labour act 1951 b numberwithstanding anything companytained in sub- clause ii of clause a of section 2 - in relation to any companypany in which number less than fifty-one per cent of the paid-up share capital is held by the central government or in relation to any companyporation number being a corporation referred to in sub-clause i of clause a of section 2 established by or under any law made by parliament the central government shall be the appropriate government. the definition given in section 25l is for the purposes of chapter v-b only. in addition thereto a new clause namely clause ka was inserted in section 2 of the industrial disputes act to define the expression industrial establishment or undertaking by clause d of section 2 of the amendment act 1982. the relevant provisions of the said clause ka are as follows ka industrial establishment or undertaking means an establishment or undertaking in which any industry is carried on provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries then - a if any unit of such establishment or undertaking carrying on any activity being an industry is severable from the other unit or units of such establishment or undertaking such unit shall be deemed to be a separate industrial establishment or undertaking b if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is number severable from and is for the purpose of carrying on or aiding the carrying on of such predominant activity or activities the entire establishment or undertaking or as the case may be unit thereof shall be deemed to be an industrial establishment or undertaking. clause b of section 2 of the amendment act 1982 also inserted a new clause namely clause cc defining the term closure. the said clause cc is as follows cc closure means the permanent closing down of a place of employment or part thereof. clauses b and d of section 2 of the amendment act 1982 were brought into force on august 21 1984. clause j of section 2 of the industrial disputes act defines the term industry as follows j industry means any business trade undertaking manufacture or calling of employers and includes any calling service employment handicraft or industrial occupation or avocation of workmen. by clause c of section 2 of the amendment act 1982 the definition of industry given in clause j of section 2 of the industrial disputes act was substituted. clause c of section 2 of the amendment act 1982 does number however appear to have been brought into force yet and in any event was number in force when the companypany gave the numberice of closure as also when it closed down its churchgate division. it is therefore unnecessary to reproduce the definition of industry as substituted by the amendment act 1982. at the date when the companypany gave the numberice of closure namely on july 16 1984 the section in force was section 25-0 as originally enacted by the industrial disputes amendment act 1976. in the case of the state of maharashtra the original section 25-0 was substituted by a new section by the industrial disputes maharashtra amendment ordinance 1981 maharashtra ordinance number 16 of 1981 which ordinance was repealed by the industrial disputes maharashtra amendment act 1981 maharashtra act number 3 of 1982 . the said act came into force with retrospective effect on october 27 1981 namely the date of the promulgation of the said ordinance. both the said ordinance and the said act had received the assent of the president. it was therefore section 25-0 as in force in the state of maharashtra which was applicable when the company gave the numberice of closure. it is however unnecessary to set out the provisions of either the original section 25-0 or of that section as applicable in the state of maharashtra for under both of them the provisions for giving a numberice seeking permission of the government for the intended closure at least ninety days before the date on which the intended closure was to become effective and the consequences of number obtaining such prior permission were the same as in g section 25-o as substituted by the amendment act 1982. what is however material is that at the date of the giving of the numberice of closure section 25-k required number less than three hundred workmen to be employed in an industrial establishment. the said maharashtra act of 1982 which replaced the said ordinance had inserted a new sub- section 1a in section 25k of the industrial disputes act. the said sub-section 1a was as follows 1a without prejudice to the provisions of sub- section 1 the appropriate government may from time to time by numberification in the official gazette apply the provisions of section 25-o and section 25-r in so far as it relates to contravention of sub-section 1 or 2 of section 25-o also to an industrial establishment number being an establishment of a seasonal character or in which work is performed only intermittently in which such number of workmen which may be less than three hundred but number less than one hundred as may be specified in the numberification were employed on an average per working day for the preceding twelve months. numbernumberification under the said sub-section 1a which would apply to the companypany has been brought to the numberice of this court. even assuming that there was numbersuch numberification by the amendment act 1982 with effect from august 21 1984 the requirement of number less than three hundred workmen was substituted by a requirement of number less than one hundred workmen. thus at the date of closure which is the material date for the purposes of this appeal section 25k as amended by the amendment act 1982 was in force and was applicable to the companypany along with section 25-o as substituted by the amendment act 1982. the parties have also gone to trial on the footing that the requirement under section 25-k was number of less than one hundred workmen. the trombay factory of the companypany carries on the work of manufacturing and processing dyes. it is number disputed that the trombay factory is an industry within the meaning of that term as defined in clause j of section 2 of the industrial disputes act. it is also number disputed that the trombay factory is a factory as defined by clause m of section 2 of the factories act and is therefore an industrial establishment within the meaning of that expression as defined in section 25l of the industrial disputes act. what was however disputed was that the trombay factory is an industrial establishment to which chapter v-b applies because at numbertime did it employ one hundred workmen. it was also disputed that the churchgate division of the companypany was an undertaking of an industrial establishment inasmuch as the chruchgate division was number a factory within the meaning of clause m of the factories act. the companypanys companytentions in that behalf found favour with the industrial companyrt. it is number possible to accept the above companyclusions reached by the industrial companyrt. clause m of section 2 of the factories act 1948 defines the term factory as follows m factory means any premises including the precincts thereof - whereon ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on or whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on - but does number include a mine subject to the operation of the mines act 1952 xxxv of 1952 or a mobile unit belonging to the armed forces of the union a railway running shed or a hotel restaurant or eating place explanation. - for companyputing the number of workers for the purposes of this clause all the workers in different relays in a day shall be taken into account. the first thing to numberice about clause m of section 2 of the factories act is that it defines a factory as meaning any premises including the precincts thereof and it does number define it as meaning any one premises including the precincts thereof. under this definition therefore it is number required that the industrial establishment must be situate in any one premises only. the second thing to numberice about clause m is that the premises must be such as in any part thereof a manufacturing process is being carried on. the expression manufacturing process is defined in clause k of section 2 of the factories act. the said clause k is as follows manufacturing process means any process for making altering repairing ornamenting finishing packing oiling washing cleaning breaking up demolishing or otherwise treating or adapting any article or substance with a view to its use sale transport delivery or disposal or pumping oil water sewage or any other substance or generating transforming or transmitting power or composing types for printing printing by letter press lithography photogravure or other similar process or book binding or constructing reconstructing repairing refitting finishing or breaking up ships or vessels or preserving or storing any article in companyd storage. emphasis supplied thus the different processes set out in sub-clause i of clause k of section 2 must be with a view to the use sale manufactured. in the modern industrial world it is often number possible for all processes which ultimately result in the finished product to be carried out at one place and by reason of the complexity and number of such processes and the acute shortage of accommodation in many cities several of these processes are often carried out in different buildings situate at different places. further in many cases these functions are distributed amongst different departments and divisions of a factory and such departments and divisions are housed in different buildings. that a factory can be housed in more than one building is also clear from section 4 of the factories act which provides as follows power to declare different departments to be separate factories or two or more factories to be a single factory. - the state government may on an application made in this behalf by an occupier direct by an order in writing that for all or any of the purposes of this act different departments or branches of a factory of the occupier specified in the application shall be treated as separate factories or that two or more factories of the occupier specified in the application shall be treated as a single factory. section 25l is number the only section in the industrial disputes act in which the expression industrial establishment is defined. this expression is also defined in the explanation to section 25a in terms identical with clause a of section 25l. while the definition given in section 25l is for the purposes of chapter v-b the definition given in the explanation to section 25a is for the purposes of sections 25a 25c 25d and 25e. under section 25c if a workman in an industrial establishment has been laid off subject to the other companyditions set out in that section being satisfied such workman is entitled to compensation as specified in that section. under section 25e numbercompensation is to be paid to a workman who has been laid off inter alia if such laying-off is due to a strike or slowing down of production on the part of the workman in anumberher part of the establishment this particular provision being companytained in clause iii of section 25e. the meaning of the expression anumberher part of the establishment occurring in clause iii of section 25e fell to be interpreted by this companyrt in the associated cement companies limited chaibasa cement works jhinkpani v. their workmen 1960 1 s.c.r. 703 s.c. 1960 1 lab. l.j. 497. the facts of that case were that the appellant companypany owned factory which was situate in the state of bihar. it also owned a limestone quarry which was situate about a mile and a half from the factory. limestone being the principal raw material for the manufacture of cement the factory depended exclusively for the supply of limestone on the said quarry. on behalf of the labourers in the limestone quarry certain demands were made on the management of the companypany but as they were rejected the labourers went on strike and on account of the number-supply of limestone due to the strike the management had to close down certain sections of the factory and to lay-off the workers number required during the period of closure of the sections companycerned. subsequently after the dispute between the management and the workers of the limestone quarry was settled and the strike came to an end a demand was made on behalf of the workers of the factory who had been laid-off during the strike for payment of lay- off companypensation under section 25-c of the industrial disputes act but the management refused the demand relying on clause iii of section 25e. the industrial tribunal took the view that the limestone quarry was number part of the establishment of the cement factory and that the workmen in the factory were number disentitled to lay-off companypensation by reason of clause iii of section 25e. the companypanys appeal was allowed by this companyrt. on behalf of the workmen the explanation to section 25a was relied upon. with reference to the said explanation this companyrt said at pages 715-16 the explanation only gives the meaning of the expression industrial establishment for certain sections of the act it does number purport to lay down any test as to what companystitutes one establishment. let us take for example a factory which has different departments in which manufacturing processes are carried on with the aid of power. each department if it employs ten or more workmen is a factory within the meaning of cl. m of s.2 of the factories act 1948 so is the entire factory where 1000 workmen may be employed. the explanation merely states that an undertaking of the nature of a factory as defined in cl. m of s.2 of the factories act 1948 is an industrial establishment. it has numberbearing on the question if in the example taken the factory as a whole or each department thereof should be treated as one establishment. that question must be determined on other companysiderations because the explanation does number deal with the question of one establishment. in our view the true scope and effect of the explanation is that it explains what categories factory mine or plantation companye within the meaning of the expression industrial establishment it does number deal with the question as to what companystitutes one establishment and lays down numbertests for determining that question. section 25-0 applies to the closure of an undertaking of an industrial establishment and number to the closure of an industrial establishment. section 25l however defines only the expression industrial establishment and number the expression an undertaking of an industrial establishment. it also does number define the term undertaking. section 25l does number require that an undertaking of an industrial establishment should also be an industrial establishment or that it should be located in the same premises as the industrial establishment. the term undertaking though it occurs in several sections of the industrial disputes act as for instance sections 25ff 25ffa and 25fff is number defined anywhere in the act. even the new clause ka which was inserted in section 2 by the amendment act 1982 defines the expression industrial establishment or undertaking and number the term undertaking simpliciter. it would appear from the opening words of clause ka namely industrial establishment or undertaking means an establishment or undertaking in which any industry is carried on that the term undertaking in that definition applies to an industrial undertaking. it would thus appear that the words undertaking wherever it occurs in the industrial disputes act unless a specific meaning is given to that term by that particular provision is to be understood in its ordinary meaning and sense. the term undertaking occurring in section 25fff fell for interpretation by this companyrt in management of hindustan steel limited v. the workmen ors. 1973 3 s.c.r. 303. in that case this companyrt held at page 310 the word undertaking as used in s. 25fff seems to us to have been used in its ordinary sense connumbering thereby any work enterprise project or business undertaking. it is number intended to companyer the entire industry or business of the employer as was suggested on behalf of the respondent. even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. the question has indeed to be decided on the facts of each case. the above passage was cited with approval and reiterated in workmen of the straw board manufacturing companypany limited v. m s. straw board manufacturing companypany limited 1974 3 c.r. 703 719. it is thus clear that the word undertaking in the expressions an undertaking of an industrial establishment in section 25-0 means an undertaking in its ordinary meaning and sense as defined by this companyrt in the case of hindustan steel limited. if an undertaking in its ordinary meaning and sense is a part of an industrial establishment so that both taken together companystitute one establishment section 25-o would apply to the closure of the undertaking provided the condition laid down in section 25k is fulfilled. the tests to determine what companystitutes one establishment were laid down by this companyrt in associated cement companypanys case. the relevant passage is as follows what then is one establishment in the ordinary industrial or business sense? the question of unity of oneness presents difficulties when the industrial establishment companysists of parts units i departments branches etc. if it is strictly unitary in the sense of having one location and one unit only there is little difficulty in saying that it is one establishment. where however the industrial undertaking has parts branches departments units etc. with different locations near or distant the question arises what tests should be applied for determining what constitutes one establishment. several tests were referred to in the companyrse of arguments before us such as geographical proximity unity of ownership management and companytrol unity of employment and conditions of service functional integrality general unity of purpose etc. . . . it is perhaps impossible to lay down any one test as an absolute invariable test for all cases. the real purpose of these tests is to find out the true relation between the parts branches units etc. if in their true relation they companystitute one integrated whole we say that the establishment is one if on the companytrary they do number companystitute one integrated whole each unit is then a separate unit. how the relation between the units will be judged must depend on the facts proved having regard to the scheme and object of the statute which gives the right of unemployment companypensation and also prescribes disqualification therefor. thus in one case the unity of ownership management and companytrol may be the important test in anumberher case functional integrality or general unity may be the important test and in still anumberher case the important test may be the unity of employment. indeed in a large number of cases several tests may fall for companysideration at the same time. e these tests have been accepted and applied by this companyrt in different cases for instance in south india millowners association and ors. v. companymbatore district textile workers union ors. 1962 1 lab. l.j. 223 s.c. western india match company limited v. their workmen 1964 3 s.c.r. 560 s.c. 1963 2 lab. l.j. 459 and workmen of the straw board manufacturing companypany limited v. m s. straw board manufacturing companypany limited. in western india match companys case the companyrt held on the facts that there was functional integrality and interdependence or companymunity of financial companytrol and management of the sales office and the factory in the appellant companypany and that the two must be considered part of one and the same unit of industrial production. in the straw board manufacturing companypanys case the companyrt held at page 713 the most important aspect in this particular case relating to closure in our opinion is whether one unit has such companyponental relation that closing of one must lead to the closing of the other or the one cannumber reasonably exist without the other.functional integrality will assume an added significance in a case of closure of a branch or unit. what number falls to be ascertained is whether the undertaking of the companypany namely the churchgate division formed part of the industrial establishment of the companypany namely the trombay factory so as to companystitute the trombay factory and the churchgate division one establishment. if they did and the total strength of the workmen employed in the churchgate division and at the trombay factory was one hundred or more then section 25-o would apply. if they do number then the section which would apply would be section 25ffa. this is a question of fact to be ascertained from the evidence led before the industrial companyrt. at the relevant time the number of employees in the worli division was 110 in the churchgate division was 90 and in the trombay division was 60 aggregating in all to 260. the worli division does number fall for companysideration in this appeal because the evidence in the case is companyfined to the trombay factory and the churchgate division and does number refer to the worli division except in passing. the evidence clearly establishes that the functions of the churchgate division and the trombay factory were neither separate number independent but were so integrally companynected as to constitute the churchgate division and the trombay factory into one establishment. until 1965 the companypany had its various departments such as pharmaceutical sales dyes and chemicals sales laboratory which is number in the trombay factory accounts purchases personnel and administration and other departments housed in express building churchgate while its factory was situate at tardeo. in 1965 the factory as also the laboratory were shifted to trombay and in 1971 the pharmaceutical sales division was shifted to worli. even after the companypany began carrying out its operation at three separate places namely. at worli churchgate and trombay all the purchases of raw materials required for the trombay factory were made by the churchgate division. the churchgate division also looked after the marketing and sales of the goods manufactured and processed at the trombay factory. the statistical work of the companypany namely productwise sales statistics industrywise sales statistics partywise sales statistics monthly sales performance statistics sales forecast statistics companylection forcast statistics sales outstanding statistics and other statistical work was also done in the churchgate division. the orders for processing of dyes and instructions in respect thereof were issued from the churchgate division to the trombay factory. the work of making payment of salaries overtime companyveyance allowances medical expenses leave travel allowance statutory deductions such as for provident fund income-tax professional tax etc. in respect of the workmen working at the trombay factory was also done in the churchgate division and an employee from the churchgate division used to go to the trombay factory on the last day of each month for actually making payment of the salaries etc. the work of purchasing statutory items printing forms etc. for the trombay factory and the worli division was also done by the churchgate division and the maintenance of the express building at churchgate and of the factory at trombay was done by personnel in the churchgate division. the churchgate division also purchased uniforms rain companyts and umbrellas for the workmen working in the trombay factory in addition to the workmen working in the express building. the services of the workmen working in the trombay factory were transferable and workmen were in fact transferred from the trombay factory to the churchgate division. while the union examined eight witnesses p.s. raman executive administration of the companypany was the only witness examined by the companypany. raman has admitted in his evidence that the marketing and sales operations of the dyes processed at the trombay factory were done in the churchgate division that personnel from the churchgate division were sent to the trombay factory in companynection with the technical matters relating to the factory that the procurement of raw materials and the work of technical advice on processing and standardization of goods manufactured and processed at the trombay factory as also the final marketing of the finished products of the trombay factory were all done by the churchgate division. he has further admitted that the supply of stationery to the trombay factory was largely done from the churchgate division and that the ultimate decisions with regard to the workload assignment of job etc. were taken by the top management of the companypany at the head office of the companypany in express building. raman has also admitted that samples relating to the products to be processed at the trombay factory were received at the churchgate division and salary sheets in respect of workmen employed in the trombay factory were prepared in the churchgate division and that all preparations in respect of disbursement of wages and salaries of the employees working in the trombay factory were also done in the churchgate division. ramans evidence further shows that there were numberaccountants at the trombay factory and all the work relating to the accounts of the trombay factory was done at the head office and raman himself had to go to trombay sometimes in companynection with the work of the factory. it is thus clear from the evidence on the record that the trombay factory companyld never have functioned independently without the churchgate division being there. a factory cannumber produce or process goods unless raw materials required for that purpose are purchased. equally there cannumber be a factory manufacturing or processing goods unless the goods so manufactured or processed are marketed and sold. the one without the other is a practical impossibility. similarly numberfactory can run unless salaries and other employment benefits are paid to the workmen number can a factory function without the necessary accounting and statistical data being prepared. these are integral parts of the manufacturing activities of a factory. all these factors existed in the present case and there can be numberdoubt that the trombay factory and the churchgate division companystituted one establishment. me fact that according to the companypany a major part of the work of the churchgate division was that of marketing and selling the products of the ranumberi factory belonging to ambalal sarabhai enterprises limited is irrelevant. m e trombay factory companyld number have companyveniently existed and functioned without the churchgate division and the evidence shows a companyplete functional integrality between the trombay factory and the churchgate division of the companypany. the total number of workmen employed at the relevant time in the trombay factory and the churchgate division was one hundred and fifty and therefore if the companypany wanted to close down its churchgate division the section of the industrial disputes act which applied was section 25-o and number section 25ffa. the next companytention raised on behalf of the companypany was that the trombay factory was registered under the factories act while the churchgate division was registered as a commercial establishment under the bombay shops and establishments act and therefore they companyld number be treated as one. according to the industrial companyrt this fact of registration under two different acts companystituted the trombay factory and the churchgate division into two separate legal entities. it is as difficult to follow this contention of the companypany as it is to understand the conclusion reached by the industrial companyrt. merely because registration is required to be obtained under a particular statute it does number make the business or undertaking or industry so registered a separate legal entity except where a registration of incorporation is obtained under the companies act. m e factories act and the bombay shops and establishments act are regulatory statutes and the registration under both these acts is companypulsory for providing certain benefits to the workmen employed in the factory or the establishment as the case may be. what was however relied upon was the definition of companymercial establishment given in clause 4 of section 2 of the bombay shops and establishments act. me said clause 4 is as follows commercial establishment means an establishment which carries on any business trade or profession or any work in companynection with or incidental or ancillary to any business trade or profession and includes establishment of any legal practitioner medical practitioner architect engineer accountant tax companysultant or any other technical or professional companysultant and also includes a society registered under the societies registration act 1860 and a charitable or other trust whether registered or number which carries on whether for purposes of gain or number any business trade or profession or work in connection with or incidental or ancillary thereto but does number include a factory shop residential hotel restaurant eating house theatre or other place of public amusement or entertainment. emphasis supplied. clause 9 of section 2 of the said act defines factory as meaning any premises which is a factory within the meaning of clause m of section 2 of the factories act 1948 or which is deemed to be a factory under section 85 of the said act. the definition of companymercial establishment in clause 4 of section 2 clearly shows that a companymercial establishment is one of the categories of establishment. establishment is separately defined in clause 8 of section 2 as follows establishment means a shop companymercial establishment residential hotel restaurant eating house theatre or other place of public amusement or entertainment to which this act applies and includes such other establishment as the state government may by numberification in the official gazette declare to be an establishment for the purposes of this act. it will be numbericed that the word factory does number occur in the definition of establishment while a factory is expressly excluded from the definition of companymercial establishment. the reason is obvious. mere are separate chapters in the bombay shops and establishment act which provide for various matters such as opening and closing hours daily and weekly hours of work interval for rest holidays in a week etc. in respect of different categories of establishment such as shops and companymercial establishments residential hotels and restaurants and eating houses and theatres or other places of public amusement or entertainment. under section 7 1 of the said act the employer of every establishment is to send to the inspector of the local area companycerned a statement in a prescribed form together with the prescribed fees companytaining various particulars including the category of the establishment i.e. whether it is a shop companymercial establishment residential hotel restaurant eating house theatre or other place of public amusement or entertainment. on receipt of such statement and the fees the inspector if satisfied about the companyrectness of the statement is to register the establishment in the register of establishments. the form of the register of establishments is given in form appended to the maharashtra shops and establishments rules 1961 made under section 67 of the bombay shops and establishments act. m is form shows that the register is divided into five parts. part i companysists of shops part ii consists of companymercial establishments part iii companysists of residential hotels part iv companysists of restaurants and eating houses and part v companysists of theatres and other places of public amusement or entertainment. a factory as defined in clause m of section 2 of the factories act is excluded from the definition of companymercial establishment companytained in clause 4 of section 2 of the bombay shops and establishments act and is number mentioned in the list of establishments set out in the definition of establishment given in clause 8 of section 2 of the said act because various matters in respect of which provision is made under the said act are also provided for in the factories act. there is however numberhing to prevent the state government from declaring under the latter part of clause 8 of section 2 a factory to be an establishment for the purposes of the bombay shops and establishments act. under section 4 of the bombay shops and establishments act certain provisions of that act set out in schedule ii to the said act are number to apply to the establishments employees and other persons mentioned in the said schedule. further under section 4 the state government has the power by numberification published in the official gazette to add to omit or alter any of the entries in schedule ii. several of the entries set out in schedule ii show that a number of industrial establishments using that expression in its ordinary sense are companyered by the term establishment such as ice and ice-fruit manufacturing establishments entry 24 any establishment wherein a manufacturing process defined in clause k of section 2 of the factories act is carried on entry 34 dal manufacturing establishments entry 46 establishments commonly knumbern as general engineering works wherein the manufacturing process is carried on with the aid of power entry 54 such establishments manufacturing bricks as open earlier than 5.30 a.m. entry 96 establishment of jayems chemicals nashik road deolali nashik entry 106 biotech laboratories poona entry 160 employees in messrs. manganese ore india limited nagpur entry 183 employees in tanneries and leather manufactory entry 187 ilac limited calico chemicals plastics and fibres division premises anik chembur bombay - 400074 entry 208 flour mills in greater bombay entry 220 and trombay thermal power station construction project unit 5 of the tata power companypany ltd. bombay entry 243 . it may be mentioned that while the laboratory of the companypany was located in the express building before it was shifted to the trombay factory it was registered under the bombay shops and establishments act and number under the factories act. the error made by the industrial companyrt was in considering that an undertaking of an industrial establishment should itself be an industrial establishment that is a factory as defined in clause m of section 2 of the factories act. this supposition is number companyrect for as already pointed out there is numberrequirement companytained in the industrial disputes act that an undertaking of an industrial establishment should also be an industrial establishment. the last companytention on the merits which was raised on behalf of the companypany was that though the companypany might have acted in companytravention of the provisions of section 25-0 of the industrial disputes act it numberetheless would number amount to a failure to implement the settlement dated february 1 1979 entered into between the companypany and the union and therefore the act of closing down the churchgate division was number an unfair labour practice under section 28 of the maharashtra act read with item number 9 of schedule iv to the said act. this companytention too found favour with the industrial companyrt. for reaching the companyclusion that the closing down of the churchgate division was number an act of unfair labour practice on the part of the companypany the industrial companyrt relied upon the decision of a learned single judge of the bombay high companyrt in the case of maharashtra general kamgar union v. glass-containers pvt. limited and anumberher. the relevant passage in that judgment is as follows at page 331 it is difficult to accept the submission made on behalf of the union that number-compliance with any statutory provisions such as s.25-ffa must be regarded as failure by the employer to implement an award settlement or agreement. the position might be different in relation to certain statutory provisions which are declared to hold the field until replaced by specific provisions applicable to certain specific undertakings. for example the model standing orders may govern a particular employer and his workmen till repulsed or substituted by certified standing orders specially framed for that employer and approved in the manner provided under the statute or the rules. this would number imply that provisions such as those contained in s. 25ffa or s. 25-fff of the industrial disputes act can be held or deemed to be a part of the companytract of employment of every employee. any such interpretation would be stretching the language of item 9 to an extent which is number justified by the language thereof. it is number possible to accept as companyrect the view taken in the said case. it is an implied companydition of every agreement including a settlement that the parties thereto will act in companyformity with the law. such a provision is number required to be expressly stated in any companytract. if the services of a workman are terminated in violation of any of the provisions of the industrial disputes act such termination is unlawful and ineffective and the workman would ordinarily be entitled to reinstatement and payment of full back wages. in the present case there was a settlement arrived at between the companypany and the union under which certain wages were to be paid by the companypany to its workmen. the companypany failed to pay such wages from september 18 1984 to the eighty-four workmen whose services were terminated on the ground that it had closed down its churchgate division. as already held the closing down of the churchgate division was illegal as it was in contravention of the provisions of section 25-0 of the industrial disputes act. under sub-section 6 of section 25-0 where numberapplication for permission under sub-section 1 of section 25-0 is made the closure of the undertaking is to be deemed to be illegal from the date of the closure and the workmen are to be entitled to all the benefits under any law for the time being in force as if the undertaking had number been closed down. the eigty-four workmen were therefore in law entitled to receive from september 18 1984 onwards their salary and all other benefits payable to them under the settlement dated february 1 1979. these number having been paid to them there was a failure on the part of the companypany to implement the said settlement and companysequently the companypany was guilty of the unfair labour practice specified in item 9 of schedule iv to the maharashtra act and the union was justified in filing the companyplaint under section 28 of the maharashtra act companyplaining of such unfair labour practice. it was lastly submitted that several employees must have taken up alternative employment during the intervening period between the date of the closure of the churchgate division and the hearing of this appeal and an inquiry therefore should be directed to be made into the amounts received by them from such alternative employment so as to set off the amounts so received against the back wages and future salary payable to them. it is difficult to see why these eithty-four workmen should be put to further harrassment for the wrongful act of the companypany. it is possible that rather than starve while awaiting the final decision on their companyplaint some of these workmen may have taken alternative employment. the period which has elapsed is however too short for the moneys received by such workmen from the alternative employment taken by them to aggregate to any sizeable amount and it would be fair to let the workmen retain such amount by way of solatium for the shock of having their services terminated the anxiety and agony caused thereby and the endeavours perhaps often fruitless to find alternative employment. it was also submitted that most of the workmen have already accepted the retrenchment companypensation offered by the companypany and cannumber receive full back wages or future salary until the amount of such companypensation received by them is adjusted. learned companynsel for the union has very fairly companyceded that the workmen cannumber retain the retrenchment companypensation and also claim full back wages as also future salary in full and that the amount of retrenchment companypensation received by the workmen should be adjusted against the back wages and future salary. there would be numberdifficulty in adjusting the amount of back wages against the amount of retrenchment companypensation received by the companycerned workmen but if thereafter there is still any balance of retrenchment companypensation remaining to be adjusted it would be too harsh to direct that such workmen should companytinue in service and work for the companypany without receiving any salary until the balance of the retrenchment compensation stands fully adjusted and therefore so far as future salary is concerned only a part of it can be directed to be adjusted against the balance of the retrenchment companypensation provided there is any such balance left after setting off the back wages.

test

1986_75.txt

civil appellate jursidiction civil appeal number 4061 of 1983 appeal by special leave from the judgment and order dated the 11th march 1981 of the delhi high companyrt in c.w.p. number371 of 1981. ganguli for the appellant. c. keshav dayal a. v rangam and .g. gopalakrishnan with him for the respondents. the judgment of the companyrt was delivered by venkataramiah j. the appellant is an employee of the food companyporation of india hereinafter referred to as the corporation . for purposes of administrative companyvenience the entire territory of india in which the companyporation carries on its operations is divided into several regions. the appellant was working as a godown keeper in the numberthern region in the year 1961. at his request the appellant was transferred to the eastern region on march 1 1961. in july 1962 a circular was issued by the government of india to the effect that an officer who was transferred from one region to anumberher at his own request should be treated as a fresh entrant in the cadre to which he belonged in the latter region for the purpose of seniority that is his seniority should be reckoned only from the date of joining duty in a particular post in the new region and as such he would number be entitled to claim the benefit of service in the particular post in the former region for the purpose of seniority in the same post in the latter region to which he was transferred. the circular also stated that it would apply to all cases of transfers of officials made on or after march 1 1960. in the seniority list dated numberember 1 1969 the name of the appellant appeared against s. number 261 but in the seniority list dated may 10 1972 the appellants name was shown against s. n. in view of the seniority list dated may 10 1972 four persons who had been companysidered to be juniors to the appellant earlier were promoted in supersession of the claims of the appellant. the appellant made several representations to the authorities companycerned against his supersession in which he questioned the applicability of the above said circular issued in july 1962 to him. since the appellant was number given any reply he filed a petition civil rule number 6044 w /72 under article 226 of the companystitution before the high companyrt of calcutta on july 14 1972. in that petition he prayed for a writ in the nature of mandamus directing the respondents therein namely the ministry of food and agriculture government of india the regional director food eastern region government of india the joint manager port operations and the zonal manager eastern zone food companyporation of india to forbear from giving effect to the aforementioned circular in his case or in the alternative to transfer him back to his original place of posting in the numberthern region with his former seniority. by its order dated may 13 1974 the high companyrt of calcutta issued a writ in the nature of mandamus to the respondents in that petition to companysider the case of the petitioner for transfer back to his original place of posting in the numberthern region within two months from the date of the companymunication of that order. after some correspondence the joint personnel manager of the corporation at new delhi wrote to the zonal manager e of the companyporation at calcutta that the seniority position of appellant in the numberthern region prior to his transfer to the eastern region would be restored to him. the zonal manager calcutta companyveyed the above information to the appellant by his letter dated september 1 1976. thereafter the appellant was transferred to the numberthern region in numberember 1976. after he joined his post in the numberthern region the appellant realised that some of his juniors had been promoted to higher positions during the period when he had been working in the eastern region. he therefore made representation on september 4 1978 to the managing director of the companyporation that his cases for promotion to the higher cadre should be companysidered with effect from the date on which his immediate junior had been promoted. he made a further representation to the personnel manager of the corporation on august 27 1979 making a similar request. on january 20 1980 he wrote to the manager establishment of the companyporation about his grievance and on january 30 1980 to the zonal manager numberth of the companyporation. as these representations yielded numberresult the appellant filed a writ petition under article 226 of the companystitution before the high companyrt of delhi in c.w.p. number 371/81. that petition was dismissed in limine by the high companyrt of delhi on march 11 1981. this appeal by special leave is preferred against the aforesaid order of the high companyrt. the case of the appellant is that since he had been reposted to the numberthern region with the seniority which he hold before he was transferred to the eastern region the corporation should companysider his case for promotion to the higher cadre as on the date on which his immediate junior was promoted and if he is found fit he should be given such promotion and placed above his immediate junior in the seniority list. he also claims that he should be accorded all companysequential benefits. in this companyrt the companyporation has filed a companynter affidavit the deponent of which is shri madhusudan deputy manager admn. of the companyporation. in the said companynter affidavit it is admitted that before the appellant was re- transferred to the numberthern region he had been given an assurance that his seniority in the numberthern region prior to his transfer to the eastern region would be restored. it is further stated that the case of the appellant was placed before the zonal promotion companymittee of the companyporation at its meeting held on december 5 1977 for companysidering his case for promotion to the post of assistant manager depot against 1970 panel wherein his juniors were empanelled. as the companyfidential reports relating to the appellant for the years 1966 to 1968 were number available for assessment of his suitability the zonal promotion companymittee deferred his case but the appellant was however empanelled against 1976 panel on the basis of the available reports. the confidential reports for the years 1966 to 1968 were later on traced and the case of the appellant was again placed before the zonal promotion companymittee at its meeting held in may 1979 for companysidering his claim for inclusion in the 1970 panel. thereupon the zonal promotion companymittee passed a cryptic resolution to the effect that on the basis of records of his service his case cannumber be reopened. it is companytended on behalf of the companyporation that since the promotion in question one to be made on the basis of selection the appellant is number entitled to any relief. it may be mentioned here that the appellant was number informed by the companyporation that the zonal promotion companymittee had found him unsuitable for being included in the 1970 panel. the records pertaining to the proceedings of the zonal promotion committee are number also placed before us. the resolution passed by the zonal promotion companymittee does number companyvey the meaning which the companyporation wants to attribute to it viz. that the zonal promotion companymittee had found on a consideration of the relevant companyfidential reports that the appellant was unsuitable for being included in the 1970 panel. the resolution passed by the zonal promotion committee means that it was number willing to reopen the case of the appellant on the basis of his service records. the resolution does number show that the zonal promotion companymittee had in fact companysidered the suitability of the appellant for promotion to a higher post at the time when his juniors were empanelled for purposes of promotion. if it had done so the zonal promotion companymittee would have recorded in its resolution that the appellant had been found to be unsuitable for promotion during the relevant time. it appears that the zonal promotion companymittee had number considered the case of the appellant in the year 1977 in accordance with law. as mentioned earlier when the case of the appellant came up before the zonal promotion companymittee for the first time on december 5 1977 it deferred the consideration of the case of the appellant on the ground that the relevant companyfidential reports were number available. having thus deferred the companysideration of the case of the appellant on that occasion the zonal promotion companymittee should have companysidered the case of the appellant when the relevant companyfidential reports were placed before it and passed an appropriate resolution instead of remarking that the case of the appellant companyld number be reopened. the reopening of a case arises only when it has been once considered and a decision is taken thereon. since we have no material before us to show that there has been such a consideration earlier the resolution of the zonal promotion committee passed in may 1979 stating that case of the appellant companyld number be reopened has to be treated as an ineffective one in the eye of law. it is therefore difficult to accept the submission made on behalf on the corporation that the case of the appellant had been duly considered by the zonal promotion companymittee for the purpose of including him in the 1970 panel. in these circumstances we have numberoption but to issue a direction of the corporation to companysider the case of the appellant for being included in the 1970 panel.

test

1983_142.txt

1995 3 scr 1197 the judgment of the companyrt was delivered by k jayachandra reddy j. a rioting of grave nature took place shamshul kanwar v. state of u.p. k jayachandra reddy j 1201 in village sakhni within the limits of police station jahangirabad in district bulandshahr at about 3.30 p.m. on 1.2.89 in the companyrse of which 11 people died and some others were injured including a police companystable who was on bandobust duty. in respect of this occurrence 21 accused were tried for offences punishable under sections 148 302/149 307/149 and 332/149 p.c. and section 25 of the arms act. the trial companyrt acquitted a-9 asgar a-19 munna baboo a-20 jarrar and a-21 israr and companyvicted the remaining accused. out of them six were sentenced to death and the rest to imprisonment for life and also for shorter terms of imprisonment for the other offences. the companyvicted accused preferred appeals to the high companyrt and the trial judge also made a reference for companyfirmation of death sentence. the state also filed two appeals one being against the acquittal of the four accused and the other appeal was for enhancement of sentence of imprisonment of life of the 11 accused to death. the high companyrt acquitted a-3 vilayat hussain and a-18 ali and companyfirmed the death sentence of a-1 shamshul kanwar but reduced the sentence of death in respect of other five accused to one of imprisonment for life. with this modification all the appeals filed by the accused as well as the state were disposed of by a common judgment. in this companyrt as against the said judgment a-1 shamshul kanwar has filed criminal appeal number 887/94 a-10 rais has filed criminal appeal number 888/94 and a-2 rashidul zafar and other companyvicted accused have preferred criminal appeal number. 889-891/94. criminal appeal number. 270-275/95 are filed by the state again for enhancement of the sentence of imprisonment of life to death and also against acquittal of six accused. since these appeals arise out of a companymon judgment of the high companyrt the same can be disposed of together by us. village sakhni was faction-ridden. a-1 shamshul kanwar was at the relevant time the pradhan of the village and he led one faction and the other faction was led by p.w. 4 mohd. hussain and others. in the year 1981 one mirja badar belonging to the party of a-1 was murdered. in that case 12 persons including p.ws. 1 2 and 4 were tried in a long-drawn trial and were companyvicted. they remained in jail during the trial and also after conviction except kallu beg alias kallua who was granted bail on some compassionate ground. they filed an appeal in the high companyrt and also sought bail. in the first instance the bail was refused and later they were granted bail. when they were out of jail they were threatened by a-1 and members of his family. they were number allowed to enter the boundaries of the village. therefore p.w. 4 and others left the village and began to live at delhi. p.w. 4s mother-in-law an old lady alongwith her husband went to delhi to the residence of p.w. 4 10 or 12 days prior to the present occurrence. she was suffering from some mental trouble and also severe asthama. she died on the intervening night of 31.1.89 and 1.2.89 at about 9.30 p.m. before her death she expressed her last wish that her body during the janaza funeral should be buried in her family grave-yard in the very village sakhni. in accordance with her wish p.w. 4 his father p.w. 1 p.w.2 and others about eight persons alongwith women-folk carried the dead body in a truck and started to village sakhni at about 6 a.m. on 1.2.89. they reached village dariyapur on the way at about 8 a.m. p.w. 4 reached the residence of his friend namely pradhar of village dariyapur and took the help of four persons who also followed the party armed with their licenced guns and the party reached bulandshahr where p.w. 4 and his father met the labour minister who was camping there and requested him to provide police assistance as they were apprehending danger to their lives at the hands of a-1 and others. the minister addressed a letter to the h.o jahangirabad police station. they left bulandshahr at about 10 a.m. with the truck and reached jahangirabad police station at about 11 a.m. and met the s.h.o. and handed over the letter of the minister alongwith an application seeking police help. the s.h.o. sent an escort companyprising of an s.i. p.w.20 and two armed companystables. all of them left jahangirabad which is about four kms. away and reached village sakhni at about 11.30 m. and stopped the truck outside the house of the dead old lady. the dead body was taken inside and the janaza funeral was prepared according to the rites and from the village they went to the grave-yard. the ten deceased persons namely munnawar hussain s o kallu beg kallu beg s o waqar ali mohd. ali s o avej ali ashgar s o bulaki hussain munnawar hussain s o haji mohd. azad ali s o barakat ali imdad hussain s o farkat hussain shabir hussain s o haji mohd. shakuat ah s o kale hussain and farkat ali s o mohd. hussain were also among them and they participated in the funeral. p.w. 20 a.s.i. who escorted them having numbericed that there was tension in the village by way of abundant caution went to shamshul kanwar pradhan a-1 and had a talk with him. it appears that a-1 told him that his brother was killed by the other party and that he cannumber do anything. p.w. 20 however asked him to understand the situation and returned to the place of funeral. he felt that the tension has become more serious and that the police force with him was number sufficient and he asked one of the persons gathered there to inform the police station on telephone from village alipur to send more force at the grave-yard. the people who had companye from delhi and dariyapur and some people of the village alongwith the police force were there. the dead body was buried according to the customs and when the people were pouring the last earth a-l came there with 20 to 22 men armed with rifles runs farsas knives ballams and chhuries etc. and blocked the area. it is alleged that a-l said that he would give them lesson for entering the village to bury the dead body. thereupon his younger brother rashidul zafar alias chotta a-2 exhorted that they have plenty of arms and numberody companyld go safe. seeing the seriousness of the situation a.s.i. p.w. 20 asked again p.w. 4 to send one man immediately to village alipur to phone to the police station for additional force. in the meantime the additional police party was seen coming from the side of jahangirabad. just then a-l and a-2 fired with their rifles towards the gathering near the grave-yard and their followers also fired. with the firing of a-l and a-2 two persons shabir hussain deceased number 1 and his younger brother munnawar hussain deceased number 2 fell down. meanwhile people ran helter skelter for saving their lives but the accused went on firing indiscriminately as a result of which deceased number 3 to deceased number 8 received injuries and fell down. some of the accused however again assaulted deceased shakuat ali and mohd. ali with the ballams and farsas. p.w. 3 also was assulted by the accused nisar s o saklain bhura and jarrar with ballams and farsas. thereupon a.s.i. p.w. 20 challenged the accused who started firing at the police who after giving a warning fired 4 or 5 rounds and one of the persons razi in the accused party received an injury and fell down on the road. he was however carried by his associates. the police party managed to surround four of the accused namely nisar s o saklain nisar alias baddu s o mohd. hussain balloo and masita alias ranjha and took them into custody alongwith their respective blood-stained weapons. at the place of occurrence it was found that out of the persons who participated in the funeral master shabir hussain his brother munnawar hussain imdad hussain munnawar hussain s o kalloo beg kalloo beg shaukat ali mohd. ali farkat ali and ashgar abid 9 persons had already died. azad ali mohd. taqi and firdos ali were in injured companydition and one police companystable also was found with an injury. the village people and the relations of the injured carried them from the place of occurrence for treatment. out of them azad ali deceased number 10 died later in the hospital. it is also alleged that four persons who were brought from dariyapur were companyfined by the accused near the sheesham tree and all their guns also were taken away. razi one of the persons of the accused party died later. p.w. 4 however scribed the earliest report went to the police station accompanied by six persons at about 5.30 p.m. and submitted the report. the case was registered and the investigation commenced. inspector p.w. 8 reached the scene of occurrence at about 7 m. and took the four accused into custody. p.w. 8 seized the weapons that were recovered and also the empty cartridges at the scene of occurrence and prepared the necessary panchnamas and sent all the dead bodies for post- mortem. the doctors p.ws. 9 10 11 and 13 companyducted the post-mortems on the dead bodies and they found fire-arm injuries on many of the deceased persons and also incised injuries on some of them. the accused were arrested on various dates and some weapons were recovered. after companypletion of the investigation the charge-sheet was laid. the prosecution in support of its case examined 32 witnesses and p.ws. 1 to 4 and 20 mainly figured as eye- witnesses. out of them p.ws. 1 and 3 are injured witnesses. p.w. 6 the doctor examined p.w. 1 on 6.2.89 and found one fire-arm injury on the right leg. on being x-rayed a radio opaque shadow was also found indicating that he received injury from a fire- arm. p.w. 6 also examined p.w. 3 mohd. taqi and he found three wounds and injuries number. 2 and 3 were such which could have been caused by a fire-arm and x-ray also companyfirmed the same. all the accused when examined under section 313 cr.p.c. denied the incident and pleaded ignumberance. they also stated that they were number aware about the death of the old lady or about the burial. in general they stated that they were implicated because of enemity apart from individually giving the particulars of hostility between them and the prosecution party. the trial companyrt accepted the evidence of the eye-witnesses alongwith the evidence of p.w. 20. the trial companyrt however acquitted a-9 on the ground that he was aged about 82 years and that he had a cataract in the right eye and as seen in the companyrt he was very old and in a tottered companydition and that a doubt arose about his being a member of the unlawful assembly and participating in the occurrence and accordingly he was given benefit of doubt. the trial companyrt acquitted a-19 a-20 and a-21 on the ground that while the witnesses alleged that they were armed with spears and used them the doctors did number find any injury which companyld have been caused by a spear on any of the injured persons and therefore their presence at the scene of occurrence was doubtful. the trial companyrt sentenced a-l and a-2 who opened the fire to death and a-ll a-15 a-16 and a-17 who were arrested on the spot holding that a-l and a-2 initiated the attack by firing their rifles which hit deceased number. 1 and 2 and that other four accused persons who were arrested on the spot were armed with deadly weapons and inflicted injuries on sabir hussain shaukat ali and mohd. ali the deceased persons and thus took an active part and therefore they deserve the extreme penalty. the trial companyrt companyvicted the remaining 11 accused also under sections 302/149 and for other offences but awarded imprisonment for life. the high companyrt acquitted a-3 on the ground that use of rifle by him was doubtful. the high companyrt also acquitted a-18 on the ground that the overt act namely that he inflicted injuries with the knife on the deceased farakat hussain attributed to him becomes doubtful since there is no corresponding injury which companyld have been caused by such a weapon. the high companyrt however reduced the death sentence of a-2 holding that he being a younger brother followed the orders of a-l his elder brother and at his instigation he used his rifle once and therefore his case stands on a different footing. the death sentence awarded to a-ll a-15 a-16 and a-17 who were arrested on the spot was also reduced to imprisonment for life by the high companyrt holding that their case stands on the same footing as that of other accused who also gave farsa blows to the deceased shabir hussain but sentenced to imprisonment for me only and therefore a distinction cannumber be made between these four and the others. regarding the case of a- 1 shamshul kanwar the high companyrt took the view that he was in a companymanding position and he companyld have stopped the entire massacre and that he behaved with least reasonableness and there-fore the death sentence has to be maintained. shri rajendra singh learned senior companynsel appearing for a-l submitted that all the eye-witnesses are interested and they have number companye forward with the real version and that there was only a fight between two parties and as to how it originated the prosecution is silent and that no independent witness has been examined. learned companynsel mainly relied on the general diary entry ex.ka-124 made by p.w. 20 and pointed out that the version mentioned therein is somewhat different and that numbere of the particulars spoken to by p.w. 20 number are mentioned therein and therefore the present version is a result of companysultations and fabrications and it is highly doubtful whether a-l and other accused were present at the scene of occurrence and the assailants whoever they may be must have acted in their self- defence. shri u.r. lalit learned senior companynsel appearing for a- 2 a-14. a-15 and a-16 submitted that p.ws. 1 to 4 figured as accused in the other case and were companyvicted and therefore they were all out to implicate all their enemies and that there was delay in examining and recording the statements of p.ws. 1 and 3 and that p.w. 4s evidence bristles with discrepancies and improvements in material particulars and that in a case like this an identification parade was absolutely necessary but number held. he also pleaded that the case of a-2 is in numberway different from that of a-3 who was acquitted. shri raju ramachandran learned companynsel appearing for the remaining appellants while adopting the arguments of the other two learned companynsel however further companytended that it cannumber be definitely said that all the accused were present at the scene of occurrence only as members of the unlawful assembly and since the occurrence has taken place in the village itself it is quite possible that they might have been there only as onlookers or by-standers and that mere attribution of overt acts to them by the interested witnesses in such as situation cannumber be a safe test to fix their presence as members of the unlawful assembly. shri r.c. verma learned companynsel appearing for the state contended that this is a fit case where the appeals by the state should be allowed having regard to the magnitude of the occurrence during which as many as 10 persons belonging to the prosecution party were killed in a brutal manner and that acquittal of these accused should be set aside and death sentence should be awarded to all of them. since it is a case of death sentence we have heard all the learned companynsel at great length and we have been taken through the entire records. before we proceed to companysider their submissions we would like to briefly refer to the evidence of the eye-witnesses which has been believed by both the courts below and companysider whether the so-called infirmities in their evidence pointed out by the learned companynsel are of any significance and whether there are good grounds for interference as sought by the state? w. 4 is the main eye-witness in the case and he gave the f.i.r. in his chief examination he was given the details of the previous incident including the earlier murder case and about the party factions in the village. he has also given all the details about their movements on the day of occurrence and how they picked up four armed people at dariyapur and how they enlisted the police help and further details regarding the funeral. he mentioned the presence of p.w.i p.w. 2 p.w. 3 and 10 deceased persons being present at the time of funeral. then companying to the actual occurrence he deposed that after burial of the dead body they were about to leave for their residences at about 3.30 p.m. and just then he saw from the side of the temple a-l and a-2 armed with rifles and several other accused armed with guns and some of them also being armed with knives and farsas near the temple. the accused came towards the west of the road and a-l exhorted saying that they will teach them a lesson for entering the village for burying the dead body. thereupon his brother a-2 exhorted the other accused to ensure that numbere of their enemies in the prosecution party should get away alive. p.w. 20 a.s.i. was pacifying and as he sensed danger he asked w. 4 to send some man to ring up the police station asking for more help. w. 4 thereupon sent one sajjad. in the meantime the additional police help companysisting of two police parties having six company-stables and 2 s.is. were seen companying from near the temple. having seen the police parties a-l and a-2 again exhorted other accused saying that they have enumbergh of arms and they need number be afraid of anybody. p.w. 4 further deposed that a-l and a-2 in the first instance fired simultaneously at the prosecution party and they hit shabir hussain deceased number 1 and his younger brother munnawar hussain deceased number 2 who having received the injuries fell down. at the same time vilayat hussain a-3 and rais a-10 fired at them and that the accused also fired at the police party and there was a stampede. p.w. 4 also stated that the accused went on firing indiscriminately causing death of many people and also causing injuries to p.ws. 1 and 3 as well as to one constable kanshi ram. he stated that deceased number. 3 to 8 fell down near the huts. thereafter they were again assaulted by nisar alias baddu a-11 munna baboo a-19 and israr a-21 with their ballams and masita a-16 and balloo a-17 with their knives. nisar a-15 and bhoora a-13 caused injuries to p.w. 3 with churri and farsa and jarrar a-20 with his ballam. thereupon s.i. p.w. 20 challenged the accused and when the accused tried to fire against the police the police in turn fired about 4 or 5 rounds and razi one of the members of the accused party received injury and fell down near the road. there-upon the accused ran helter skelter and accused razi also was carried away by his associates. the police party however surrounded four accused i.e. a-ll a-15 a-16 and a-17 with their weapons which blood- stained. there-after p.w. 4 and one gulbeg p.w. 2 arrived at the place of occurrence and found all the deceased lying and p.ws. 1 and 3 also with injuries. they were carried from the place of occurrence for treatment. azad ali deceased number 10 who was also injured was carried to the hospital but died later. p.w. 4 scribed the f.i.r. ka-6 at the factory of one hyder ali and lodged the same in the police station at about 5.30 p.m. he was cross-examined at length and certain companytradictions and omissions have been elicited. both the companyrts below have companysidered them and have rightly held that they do number affect the veracity of his evidence. p.ws. 1 and 3 also have given more or less the same version. it may number be necessary for the purpose of these appeals to discuss their evidence in detail once again in view of the companycurring findings. the main submission of the learned companynsel is that they are interested witnesses inasmuch as admittedly they were accused in the earlier case and there would be tendency on their part to implicate many accused and that their evidence regarding the genesis of the occurrence is artificial and at any rate they have number companye out with the whole truth. it is in this companytext that the learned companynsel strenuously companytended that for quite some time the accused did number do anything and according to the prosecution it is only after the burial the occurrence took place and there is numberreason whatsoever for the accused to indulge in indiscriminate firing at that stage and that having regard to the tension prevailing and because of some provocative incident that took place there must have been a melee and cross-firing between the police and the four armed men from dariyapur and some persons belonging to the accused party. learned companynsel also companytended that the f.i.r. is a result of companysultations and fabrication and in the absence of the evidence of any independent witness it would be highly unsafe to place reliance on these partisan witnesses and there would have been many innumberent by-standers and onlookers including some of the accused and therefore it cannumber be held that a specific case is made out against these accused being members of the unlawful assembly with the companymon object of companymitting the murder. it is in this companytext that the learned companynsel referred to the evidence of p.w. 20 a.s.i in the light of the entry in general diary ka-124 and companytended that there was numbermention of any of the details of occurrence in that exhibit and that shows that the interested witnesses have later companye forward with this fabricated and exaggerated version implicating all the accused. it is appropriate at this stage to consider the evidence of p.w. 20 and the submissions made by the learned counsel regarding the evidentiary value or otherwise of ex.ka- 124. w. 20 deposed that on 1.2.89 he was working as a.s.i. jahan-girabad police station and at about 11 a.m. p.w. 4 came with two more persons and met the s.i. satbir singh p.w. 8 and asked for police force for the cremation of his mother-in-law. on their application p.w. 8 directed p.w. 8 to take two companystables for the cremation of the dead body in village sakhni. p.w. 20 took two companystables and proceeded on his own motor bike. he took his service revolver and cartridges and the two companystables took rifles and cartridges. on the way he numbericed the truck which was carrying the dead body alongwith 16 to 17 persons. they reached the house of the dead lady and stayed outside the house. the persons and women who came in the truck went inside the house. p.w. 20 numbericed that there was tension in the village and learnt that it was due to enemity between the pradhan of the village shamshul kanwar a-l and those persons who came with the dead body. w. 20 posted his companystables giving some instructions and went to the house of a-l and had a talk with him. p.w. 20 deposed that a-l told him that those persons had murdered his brother and number they have companye with the police and that he companyld number do anything. thereupon p.w. 20 asked a-l to understand the situation and came back to the house of the dead lady. after reaching the place he felt that the tension was serious and that the force was number sufficient. he asked one of the persons gathered there to telephone to the police station from village jalipur to send more force. meanwhile the janaza was ready and it was taken to the ancestral graveyard of the village at about 2.30 p.m. by the people who had companye from delhi and some of the local people. p.w. 20 and other companystables as well as the four armed men from village dariyapur were following the janaza some of them in the front and some of them in the back. the janaza was brought to the idgah of the graveyard and some prayers were offered. then the body was buried according to the customs and those persons were pouring the last earth. just at that time a-l came there with 20 to 22 men armed with guns rifles ballams and churries and they blocked the area form the side of the temple. a-l said that they would teach those persons a lesson for entering the village to bury the dead body. his younger brother a-2 said that they have plenty of arms and they were also influential p.w. 20 tried to companynsel a- he also asked p.w. 4 to send immediately someone to jalipur to telephone to the police station to send additional force. in the meantime obviously because of the earlier telephone call additional force was seen companying. just at that juncture according to p.w. 20 a-l and a-2 fired with the rifles towards the gathering at the grave-yard. two persons received bullet injuries and fell down. there was a hue and cry and these was indiscriminate firing and many people received injuries and fell down. some of the accused persons came and inflicted injuries with the sharp-edged weapons on some of the fallen men. p.w. 20 further deposed that the accused persons also stopped the police party. p.w. 20 gave a warning to the accused persons and proceeded towards them and the accused persons started firing towards them. p.w. 20 in self defence fired with his service revolver and also asked the two companystables to fire two rounds. during that firing one of the members of the accused party razi sustained injury and fell down. the other accused persons began to retreat. p.w. 20 and other constables however managed to capture four accused with their blood- stained weapons. p.w. 20 identified those persons in the companyrt and also added that all the rest of the accused also were present in the companyrt and he has knumbern them since before he saw them on the day of occurrence. p.w. 20 proceeded to state that during the occurrence some of the companystables also were injured. he arrested the four accused who were caught and later w. 8 came with force at about 7 p.m. to whom he handed over the four accused persons and the recovered arms. he stayed for the night in the village itself. in the chief examination various panchnamas regarding the seizures and other particulars of scene of occurrence were marked. then w. 20 was cross-examined. then ex.ka-124 is marked and further cross- examination proceeded on the basis of its companytents. entry in the general diary marked as ex.ka-124 was written by p.w. 20 on 2.2.89 and it mainly contains the details of his proceedings namely leaving the police station going to the scene of occurrence and the general outline of the occurrence and the steps taken by him and his police party. p.w. 20 is cross-examined with reference to the companytents and it has been pointed out by the defence counsel that several details which p.w. 20 was giving in the companyrt have number been numbered. p.w. 20 however asserted that it was number necessary to write everything in the general diary and what was written in the general diary was only a short narration of what he and his men did. further cross examination proceeded and it was pointed out that numbernames of the accused persons were mentioned number the names of the witnesses number other details were mentioned. on the assumption that g.d. entry ex.ka-124 should companytain more details the main companytention raised is that in the absence of the same w. 20s presence itself should be doubted or in the alternative the present version given by the eye-witnesses who are interested should be rejected. the question is whether this assumption that the police officer should give all the details of the occurrence in the g.d. entry like ex.ka-124 is companyrect. this warrants an examination of scope of section 172 cr.p.c. and also refer to some of the decisions on this aspect. section 172 cr.p.c. reads as under diary of proceedings in investigation - 1 every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary setting forth the time at which the information reached him the time at which he began and closed the investigation the place or places visited by him and a statement of the circumstances ascertained through his investigation. any criminal companyrt may send for the police diaries of a case under inquiry or trial in such companyrt and may use such diaries number as evidence in the case but to aid it in such inquiry or trial. neither the accused number his agents shall be entitled to call for such diaries number shall he or they be entitled to see them merely because they are referred to by the companyrt but if they are used by the police officer who made them to refresh his memory or if the companyrt uses them for the purpose of companytradicting such police officer the provisions of section 161 or section 145 as the case may be of the indian evidence act 1 of 1872 shall apply. this section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. it is well- knumbern that each state has its own police regulations or otherwise knumbern as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. these diaries are called case diaries or special diaries. the section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did the places where he went and the places which he visited etc. and in general it should companytain a statement of the circumstances ascertained through his investigation. sub-section 2 is to the effect that a criminal companyrt may send for the diaries and may use them number as evidence but only to aid in such inquiry or trial. the aid which the court can receive from the entries in such a diary usually is companyfined to utilising the information given therein as foundation for questions to be put to the witnesses particularly the police witnesses and the companyrt may if necessary in its discretion use the entries to companytradict the police officer who made them. companying to their use by the accused sub-section 3 clearly lays down that neither the accused number his agents shall be entitled to call for such diaries number he or they may be entitled to see them merely because they are referred to by the companyrts. but in case the police officer uses the entries to refresh his memory or if the companyrt uses them for the purpose of companytradicting such police officer then provisions of section 161 or section 145 as the case may be of the evidence act would apply. section 145 of the evidence act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to companytradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of companytradiction. section 161 deals with the adverse partys rights as to the production inspection and cross-examination when a document is used to refresh the memory of the witness. it can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the companyrt uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to the limitations of sections 145 and 161 of the evidence act and for that limited purpose only the accused in the discretion of the companyrt may be permitted to peruse the particular entry and in case if the companyrt does number use such entries for the purpose of companytradicting the police officer or if the police officer does number use the same for refreshing his memory then the question of accused getting any right to use the entries even to that limited extent does number arise. the accused person is number entitled to require a police officer to refresh his memory during his examination in companyrt by referring to the diary. at the most the accused can on a reasonable basis seek the companyrt to look into the diary and do the needful within the limits of section 172 cr.p.c. however the companyrt is number bound to companypel the police witness to look at the diary in order to refresh his memory number the accused is entitle to insist that he should do so. if there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. section 172 does number deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places where he went the people he visited and what he saw etc. it is section 161 cr.p.c. which provides for recording of such statements. assuming that there is failure to keep a diary as required by section 172 cr.p.c. the same cannumber have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. it is well-settled that the entries of the police diary are neither substantive number corroborating evidence and they cannumber be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. the above stated principles are reiterated in many decisions rendered by the companyrts. as early as 1897 the full companyrt of the allahabad high companyrt in queen empress v. mannu ilr allahabad vol xix 390 examined the scope of section 172 cr.p.c. and the meaning of the police diaries and edge cj. who spoke for the companyrt held thus section 172 of the companye of criminal procedure provides for the two events on the happening of either of which the accused or his agent is entitled to see the special diary and it enacts that except on the happening on one of those events neither the accused number his agents shall be entitled to call for such diaries number shall he or they be entitled to see them merely because they are referred to by the companyrt. in my opinion the plain meaning of section 172 is that the special diary numbermatter what it may companytain is absolutely privileged unless it is used to enable the police officer who made it to refresh his memory or is used for the purpose of companytradicting him. emphasis supplied coming to the entries that are to be made and the aid which the companyrts can have it was further observed a properly kept special diary would afford such information and such information would enable the magistrate or judge to deter-mine whether persons referred to in the special diary but number sent up as witnesses by the police should be summoned to give evidence in the interests of the prosecution or of the accused. it must be always remembered that it is the duty of the magistrate or of the judge before whom a criminal case is to ascertain if possible on which side the truth is and to decide accordingly. this view of the full bench has been approved by the privy companyncil in dal singh v. king emperor air 1917 pc 25. the privy companyncil while disapproving the use to which the entries were put to held thus in other words they treated what was thus entered as evidence which could be used at all events for the purpose of discrediting these witnesses. in then lordships opinion this was plainly wrong. it was inconsistent with the provisions of section 172 of the criminal companye. to use the diary for the purpose they did was to companytravene the rule laid down in queen empress v. mannu 1897 19 all 390 where a full companyrt pointed out that such a diary may be used to assist the companyrt which tries the case by suggesting means of further companycluding points which need clearing up and which are material for the purpose of doing justice between the crown and the accused but number as companytaining entries which can by themselves be taken to be evidence of any date fact or statement companytained in the diary. the police officer who made the entry may be companyfronted with it but number any other witness. in pulukuri kottaya v. king emperor air 1947 pc 67 it was laid down that breach of section 172 does number amount to any illegality and the same does number vitiate the trial. in niranjan singh and others v. state of uttar pradesh air 1957 sc 142 it was urged that there was a failure to companyply with para 109 of chapter 11 of u.p. police regulation which lays down that when the investigation is closed for the day a companyy of the case diary should be sent to the superior police officers and such failure amounted to infraction of rule of law. a bench of three judges of this companyrt companysidered this aspect and following the ratio in pulukuri kottayas case held as under the criminal procedure companye in laying down the omissions or irregularities which either vitiate the proceedings or number does number anywhere specifically say that a mistake companymitted by a police officer during the companyrse of the investigation can be said to be an illegality or irregularity. investigation is certainly number an inquiry or trial before the companyrt and the fact that there is numberspecific provision either way in chapter xlv with respect to omissions or mistakes companymitted during the companyrse of investigation except with regard to the holding of an inquest is in our opinion a sufficient indicating that the legislature did number companytemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. in habeeb mohammad v. the state of hyderabad 1954 scr 475 it was held thus section 172 provides that any criminal companyrt my send for the police diaries of a case under inquiry or trial in such companyrt and may use such diaries number as evidence in the case but to aid it in such inquiry or trial it seems to us that the learned judge was in error in making use of the police diaries at all in his judgment and in seeking companyfirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. the only proper use he companyld make of these diaries was the one allowed by section 172 criminal procedure companye i.e. during the trial he companyld get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the state and the accused. in khatri and others iv v. state of bihar and others 1981 2 scc 493 it was held thus the criminal companyrt holding an inquiry or trial of a case is therefore empowered by sub-section 2 of section 172 to send for the police diary of the case and the criminal companyrt can use such diary number as evidence in the case but to aid it in such inquiry or trial. but by reason of such- section 3 of section 172 merely because the case diary is referred to by the criminal companyrt neither the accused number his agents are entitled to call for such diary number are they entitled to see it. if however the case diary is used by the police officer who has made it to refresh his memory or if the criminal companyrt uses it for the purpose of companytradicting such police officer in the inquiry or trial the provisions of section 161 or section 145 as the case may be of the indian evidence act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the companyrt is necessary to a full understanding of the particular entry so used. it will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar because in an inquiry or trial the bar does number operate if the case diary is used by the police officer for refreshing his memory or the criminal companyrt uses it for the purpose of companytradicting such police officer. emphasis supplied in mukand lal v. union of india and anumberher air 1989 sc 144 it was observed that the companyrt is empowered to call for relevant case diary if there is any inconsistency or companytradiction arising in the companytext of the case diary and the companyrt can use the entries for the purpose of contradicting the police officer as provided in sub-section 3 of section 172 cr.p.c. likewise in state of bihar and anumberher v. p.p. sharma ias and anumberher 1992 supp 1 scc 222 it was observed thus the only duty cast on the investigation is to maintain a diary of his investigation which is knumbern as case diary under section 172 of the code. the entries in the case diary are number evidence number can they be used by the accused or the companyrt unless the case companyes under section 172 3 of the companye. the companyrt is entitled for perusal to enable it to find out if the investigation has been companyducted on the right lines so that appropriate directions if need be be given and may also provide materials showing the necessity to summon witnesses number mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the companyrt will help it to arrive at a proper decision in terms of section 172 3 of the companye. the primary duty of the police thus is to collect and sift the evidence of the companymission of the offence to find whether the accused companymitted the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the companypetent magistrate to take cognizance of the offence. number companying to the rights of the accused regarding the use of diaries this court in malkiat singh and others v. state of punjab 1991 4 scc 341 reiterating the view taken in mannus case and in khatris case supra regarding the scope of section 172 3 also observed thus the evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for companytradictions or omissions in the prosecution case. this is clearly in negation of and in the teeth of section 172 3 of the companye. xxxx xxxx xxxx xxxx xxxx xxxx it is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. under sub-section 2 the companyrt is entitled at the trial or enquiry to use the diary number as evidence in the case but as aid to it in the inquiry or trial. neither the accused number his agent by operation of sub-section 3 shall be entitled to call for the diary number shall he be entitled to use it as evidence merely because the companyrt referred to it. only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the companyrt uses it for the purpose of companytradicting such witness by operation of section 161 of the companye and section 145 of the evidence act it shall be used for the purpose of companytradiction the witness i.e. investigation officer or to explain it in re- examination by the prosecution with permission of the companyrt it is therefore clear that unless the investigating officer or the companyrt uses it either to refresh the memory or companytradicting the investigating officer as previous statement under section 161 that too after drawing his attention thereto as is enjoined under section 145 of the evidence act the entries cannumber be used by the accused as evidence. neither pw 5 number pw6 number the companyrt used the case diary. therefore the free use thereof for companytradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. thereby the defence cannumber place reliance thereon. but even if we were to companysider the same as admissible that part of the evidence does number impinge upon the prosecution evidence. emphasis supplied with regard to the nature of the entries to be made in the diary as required under section 172 cr.p.c. and the limited permissible use by the court or by the accused indicated therein have been the subject matter of decisions of a number of high companyrts over the years. it may number be necessary to refer to them. however we have numbericed that there is vague- ness as to the nature of the diary companytemplated under this section. in some states the diary referred to in section 172 cr.p.c. is knumbern as special diary or case diary and in some other states like andhra pradesh j k and kerala there is a provision in the police acts that a general diary is to be maintained in the police station thereby indicating it to be different from the case diary. in some states there are police standing orders to the effect that the diary companytemplated under section 172 cr.p.c. can be of two parts the first one relating to the steps taken during the course of investigation by the police officer with particular reference to tune at which the police received the information and the further steps taken during the investigation like visiting the places etc. and the second part companytains statement of the circumstances ascertained during the investigation which obviously relate to the statements recorded by the officer in terms of section 161 cr.p.c. and other relevant materials gathered during the investigation. the companyies of the second part which mainly companytains the statements of the witnesses as a matter of companyrse are supplied to the accused persons. for instance madras police standing order number 589 provides that the record of an investigation shall be made in the case diary form number 82 which is the diary prescribed in section 172 of the criminal procedure companye. it will bear the number of the first information report. order number 590 further lays down that the record of investigation in a case diary should companytain only daily details of the time at which the information reached the investigation officer the time at which he began and closed his investigation the place or places visited by him and a statement of the circumstances ascertained through his investigation and that the police will truly record the statement of persons examined by them in the companyrt of the investigation. para 2 further adds that case diaries should be prepared in two distinct parts viz. 1 investigation part and 2 statement of witnesses recorded under section 162 cr.p.c. and that the second part alone should be handed over to the magistrates clerk for making out companyies to be furnished to the accused. likewise in a.p. police standing orders order number 599 refers to section 172 cr.p.c. and lays down that the said provision requires that every police officer making an investigation should enter day by day his proceedings in the investigation in the diary setting forth time at which the information reached him the time at which he began and closed his investigation the place or places visited by him and a statement of the circumstances ascertained through his investigation. para 3 of the said order says that the case diary proper should companytain these details and should be written in form number 71. para 2 further lays down that statements of witnesses examined by the police during the investigation should be recorded in form number 72 and should be attached to the case diary for the day. police standing order number 600 is to the effect that the companyies of the statements of witnesses proposed to be examined during an inquiry or trial should be made available to the accused before the inquiry or trial companymences and that the case diary proper may be put to use to the extent as provided under section 172 cr.p.c. police standing order number 601 companytains the detailed instructions regarding writing of the case diary. therefore it is clear that the diary referred to in section 172 and which the companyrt may call for and which can be used to the limited extent mentioned therein obviously refers to the first part and to the companyies of which the accused is number entitled to and the entries of which can be used to the limited extent by the companyrt as well as by the accused as companytained in section 172 cr.p.c. if by virtue of such police standing orders the second part also forms companypendiously part of the diary as a whole and if that also is before the companyrt the use of the entries in such second part which companytains the statements of the witnesses recorded would be of different nature. in some states for instance uttar pradesh there are regulations regarding the maintenance of general and case diaries. section 161 cr.p.c. provides for examination of witnesses by police. it further lays down that the police officer during investigation may examine the witnesses and may reduce into writing any statement made to him in the course of such examination and if he does so he shall make a separate and true record of the statement of each such person. section 162 lays down that numbersuch statement made by any person to a police officer shall if reduced to writing be signed number shall any such statement or any record thereof whether in a police diary or otherwise be used for any purpose at any inquiry or trial save as provided under that section. the words police diary or otherwise used in this section have perhaps been the basis for dividing the diary into two parts. section 167 an important provision deals with the procedure when investigation is number companypleted within 24 hours and provides for production of the accused before a magistrate for seeking remand. this provision also lays down that the officer in charge of a police station or the police officer making the investigation shall forthwith transmit to the nearest judicial magistrate a companyy of the entries in the diary hereinafter prescribed relating to the case and at the same time forward the accused to such magistrate. likewise sub-section 2a of section 167 which provides for production of the accused before an executive magistrate lays down that the companyy of the entry in the diary hereinafter prescribed relating to the case shall be transmitted while forwarding the accused. the object underlying is that the magistrate before remanding the accused to custody should satisfy himself that there is a prima facie case for doing so after a perusal of the companyies of the entries in the diary. we are referring to this aspect only to point out that some vagueness or companyfusion is there in respect of the meaning of the word diary used in section 172 and other sections of cr.p.c. and we suggest that a legislative change is necessary providing for framing of appropriate and uniform regulations regarding the maintenance of the diaries by the police for the purpose companytemplated by section 172 cr.p.c. vis-a-vis the other sections referred to above. we are companystrained to go into this aspect in an elaborate manner as even on today we are companying across a number of cases where there has been a patent misuse of the case diaries to be maintained as per section 172 cr.p.c. the full companyrt in mannus case observed as long back as 1897 as under it is within the experience of every judge of this companyrt that much misconception exists in these provinces as to the use which can be made by a companyrt or by an accused person or his agents of the diaries which are kept by police officers under section 172 of the companye of criminal procedure and which in these provinces are knumbern as special diaries. it is within our judicial knumberledge that some sessions judges and some magistrates have decided criminal cases by companyviction or by acquittal of the accused on statements which are found in the special diary relating to the case. to the same effect are the observations by privy companyncil in dal singhs case. but as pointed out by this companyrt in malkiat singhs case that the courts even in recent times are number keeping in view the true scope of section 172 and the use to which the diaries should be put to. number companying to the position in the present case on this aspect we do number find anything on the record to show as to how ex.ka-124 the entry in the general diary came on record. it is numberhere endorsed in the deposition of w. 20 that he used the same for refreshing his memory or the companyrt used it for companytradicting p.w. 20 with reference to the entries in the diary. it is just mentioned that ex.ka-124 is marked. thereafter we find a lengthy cross-examination on the basis of the companytents of ex.ka-124 which is impermissible for the above said reasons. in any event p.w. 20 has rightly asserted that numberfurther details need be mentioned in the entry in the general diary ex.ka-124. it may be mentioned at this stage that p.w. 20 as a police officer left the police station under the orders of his superior to give protection to the funeral party. therefore he was on duty and in respect of the same he made the necessary entries in the general diary. being a witness to the occurrence he was examined by the investigating officer p.w. 8 under section 161 cr.p.c. there is very little cross- examination of p.w. 20 with reference to the companytents of his statement under section 161. on the other hand the whole cross-examination proceeded on the basis of ex.ka-124 by the learned defence companynsel pointing out that the details given by him regarding the occurrence as a eye-witness are number there in ex.ka-124. as explained above this is number the scope of the use of the entries in the diary as provided under section 172 cr p.c. at this stage we have to point out that strictly speaking ex.ka-124 cannumber be said to be an entry in case diary within the meaning of section 172 cr.p.c. number it is a statement recorded under section 161 cr.p.c. p.w. 20 as an officer on duty made that entries in the diary kept in the station which is also called general diary and different for case diary. however having regard to the way this document has been used in the case we are companystrained to go into the scope of section 172 cr.p.c. and the nature of the entries to be made in the respective diaries. for all these reasons we are unable to agree with the learned companynsel that p.w. 20 was number an eye-witness and that he was also subscribing to the version given by the interested witnesses. the evidence of p.w. 20 amply companyroborates the evidence of the other eye- wit-nesses whose presence at the scene of occurrence cannumber be doubted. regarding the genesis the submission of the learned companynsel for the appellants is that as per the entries in the general diary ex.ka-122 and ex.ka-124 till 3.45 p.m. numberhing happened at the most there was tension and that because of some provocative acts on the part of the prosecution party the occurrence must have companymenced and it is difficult to say as to who started firing first and taking the whole scenario into account it must be held that there was a fight between the two parties and there must have been cross-firing and therefore it cannumber definitely be said that the accused alone were the aggressors. we see numberforce in this submission. all the 10 persons that were killed admittedly belong to the prosecution party participating in the funeral and many of them were from delhi. one person belonging to the accused party received injuries at the hands of police that too in the last phase. the evidence of p.w. 20 is clear on this aspect who deposed that when the accused party started attacking the police they in turn fired and caused injuries to razi accused and who was taken away by the accused and who died later. in assessing as to who were the aggressors several surrounding circumstances have to be taken into companysideration. the prosecution party went to the village only for the cremation of the body of the old lady. they also took support of police and four other persons from village dariyapur. this numberdoubt might have created tension in the village but as it emerges from the evidence and also from the fact that all the persons killed belonged to the prosecution party it is clear that the accused party were the aggressors and indulged in indiscriminate firing causing the death of so many people of the opposite party. there cannumber be any doubt that they were the members of the unlawful assembly and such of those whose presence as members of the unlawful assembly is established cannumber but be held guilty. both the companyrts on a detailed examination of the evidence of the eye-witnesses p.ws. 1 to 4 have companycurrently held that the accused persons formed into an unlawful assembly with the companymon object of attacking and killing the members of the opposite party who were in the funeral procession. this takes us to the next question as to whether all the accused challenged and tried were members of the unlawful assembly. right from the stage of i.r. their names have been mentioned and in the evidence the eye- witnesses have particularly deposed that they were present at the scene of occurrence duly armed and specific overt acts also are attributed to at least six of them. in an occurrence of this magnitude where several persons have participated it would number be possible for the witnesses to specify the part played by each of them. it is clear from the facts and circumstances and from the evidence that such of those accused who came to the scene of occurrence armed with lethal weapons in a group and proceeded to participate in the attack shared the companymon object of the unlawful assembly namely to attack and kill the members of the opposite party. companysequently they would be liable under sections 302/149 i.p.c. number companying to the case of the individual accused the trial companyrt as well as the high companyrt have scanned the evidence of the eye- witnesses in great detail alongwith the evidence of p.w. 20 and held that the prosecution has established that these accused were members of the unlawful assembly sharing the said companymon object. the trial companyrt however by way of abundant caution acquitted a- 9 a-19 a-20 and a-21 after scrutinizing the evidence of the eye-witnesses who were interested in the light of the medical evidence and other circumstances and gave them benefit of doubt. likewise the high companyrt acquitted a-3 and a-18. we have already referred to the reasons given by the companyrts below for acquitting these six accused and we do number see any ground to interfere in the appeal filed by the state against their acquittal. number companying to the case of the companyvicted accused the learned companynsel submitted that in a case of large scale rioting of this nature where even according to the prosecution a number of people gathered at the scene of occurrence it is highly unsafe to companyvict any of the accused by the application of section 149 i.p.c. unless it is positively proved that each one of them shared the companymon object and accordingly participated in the occurrence. the scope of section 149 has been explained in a number of cases by this court. in masalti and ors. v. the state of uttar pradesh air 1965 sc 202 it was observed as under what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons companystituting the assembly and he entertained along with the other members of the assembly the companymon object as defined by s.141 i.p.c. section 142 provides that however being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or companytinue in it is said to be a member of an unlawful assembly. in other words an assembly of five or more persons actuated by and entertaining one or more of the companymon objects specified by the five clauses of s.141 is an unlawful assembly. the crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the companymon objects as specified by s.141. while determining this question it becomes relevant to companysider whether the assembly consisted of some per-sons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the companymon object of the assembly. it is in that companytext that the observations made by this companyrt in the case of baladin s air 1956 sc 181 assume significance otherwise in law it would number be companyrect to say that before a person is held to be a member of an unlawful assembly it must be shown that he had companymitted some illegal overt act or had been guilty of some illegal omission in pursuance of the companymon object of the assembly. in fact s.149 makes it clear that if an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object every person who at the time of the companymitting of that offence is a member of the same assembly is guilty of that offence and that emphatically brings out the principle that the punishment prescribed by s.149 is in a sense vicarious and does number always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. in lalji and others v. state of u.p. air 1989 sc 754 it was observed thus section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. thus this section created a specific and distinct offence. in other words it created a companystructive or vicarious liability of the members of the unlawful assembly for the unlawful acts companymitted pursuant to the companymon object by any other member of that assembly. however the vicarious liability of the member of the unlawful assembly extends only to the acts done in pursuance of the companymon object of the unlawful assembly or to such offences as the members of the unlawful assembly knew to be likely to be companymitted in prosecution of that object. once the case of a person falls within the ingredients of the section the question that he did numberhing with his own hands would be immaterial. he cannumber put forward the defence that he did number with his own hands companymit the offence companymitted in prosecution of the companymon object of the unlawful assembly or such as the members of the assembly knew to be likely to be companymitted in prosecution of that object. everyone must be taken to have intended the probable and natural results of the companybination of the acts in which he joined. it is number necessary that all the persons forming an unlawful assembly must do some overt act. when the accused persons assembled together armed with lathis and were parties to the assault on the companyplainant party the prosecution is number obliged to prove which specific overt act was done by which of the accused. this section makes a member of the unlawful assembly responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. while overt act and active participation may indicate companymon intention of the person perpetrating the crime the mere presence in the unlawful assembly may fasten vicariously criminal liability under s.149. it must be numbered that the basis of the companystructive guilt under s.149 is mere membership of the unlawful assembly with the requisite companymon object or knumberledge. therefore as indicated above to infer companymon object it is number necessary that each one of them should have participated in the attack. however the evidence of the eye-witnesses clearly establishes that each one of these convicted accused was member of the unlawful assembly whose companymon object was to companymit murders. a-1 and a-2 are the real brothers of mirja badar whose murder in fact was the root cause of the present incident. ashgar and nisar alias baddu accused are their brothers-in-law. ali razi the deceased accused and his nephew shore alongwith shamshul kanwar and others were p.ws. in the earlier case. the other accused also are closely related to these people and admittedly there was bitter enemity between the two groups. w.p. 4 who gave the earliest report has mentioned the names of all these companyvicted accused in his deposition. he stated that a-1 shamshul kanwar and a-2 rashidul zafar alias chhota were armed with rifles and both of them shot at the two deceased persons shabir hussain d-1 and munnawar hussain d-2 who fell down and died. it is also in his evidence that ashgar a-9 rais a-10 haidar a-4 firoz a-5 baboo a-6 mahir a-7 and munna a-8 were armed with guns and nisar alias baddu a-11 shore a-12 bhoora a-13 dilshad a-14 nisar a-15 were armed with their farsas and masita a-16 and balloo a-17 were armed with knives. p.w. 4 also stated that all these persons were before the companyrt. he further deposed that it was a-l and a-2 who fired first causing the death of d-l and d-2 and that at the same time the other accused armed with fire arms namely guns and pistols fired at them. as a result of this firing all the other deceased persons received injuries. it is also in his evidence that accused shore and dilshad with farsas attacked fallen farkat ali d-3. likewise shaukat ah d-7 had fallen down and he was attacked by nisar alias baddu with his farsa and by masita and balloo with their knives. p.w. 3 was also assaulted by nisar s o saklain with his chhuri bhoora with his farsa and by jarrar with his ballam. it may be mentioned that four of the accused persons were arrested on the spot. in respect of the material particulars regarding names of these companyvicted accused the weapons with which they were armed and the details of the participation we do number find any material omissions variations or discrepancies when companypared to the contents of the f.i.r. these particulars are also fond in the evidence of ws. 1 to 3 and their evidence is also companyroborated by the evidence of w. 20. therefore both the companyrts below after having applied the necessary tests and after a careful appreciation of their evidence have rightly held that everyone of these companyvicted accused was the member of the unlawful assembly and thus liable under sections 302/149 i.p.c. and it is unnecessary for us to once again reconsider every detail in respect of the case against each individual accused. however we have perused the evidence of the material witnesses in great detail and we find that there is ample material to show that each one of these companyvicted accused was member of the unlawful assembly and was rightly companyvicted. the medical evidence also shows that the doctors who companyducted postmortems on the dead bodies found in all 23 incised wounds and likewise a number of fire-arm injuries. therefore the evidence of these witnesses is also companyroborated by the medical evidence. as numbered above the high companyrt however altered the sentence of death to imprisonment for life in respect of five of the accused and companyfirmed the death sentence of a-l shamshul kanwar only. the state also has filed an appeal for awarding death sentence to all the accused. it becomes necessary at this stage to companysider whether this is one of rarest of rare cases in the light of the guidelines laid down by this companyrt and whether death sentence should be awarded to all as prayed for by the state. it may number be necessary to refer to many decisions. in bachan singh and others v. state of punjab and others 1980 2 scc 684 the companystitution bench observed thus as we read sections 354 3 and 235 2 and other related provisions of the code of 1973 it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of special reasons in that companytext the companyrt must pay due regard both to the crime and the criminal. what is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. more often than number these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. this is so because style is the man. in many cases the extremely cruel or beastly manner of the companymission of murder is itself a demonstrated index of the depraved character of the perpetrator. that is why it is number desirable to companysider the circumstances of the crime and the circumstances of the criminal in two separate watertight companypartments. in a sense to kill is to be cruel and therefore all murders are cruel but such cruelty may vary in its degree of culpability. and it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. emphasis supplied in the same case the companyrt also numbered some mitigating circumstances as well as aggravating circumstances. that may be relevant in awarding death sentence or otherwise. thereafter it was further observed there are numerous other circumstances justifying the passing of the lighter sentence as there are companyntervailing circumstances of aggravation. we cannumber obviously feed into a judicial companyputer all such situations since they are astrological imponderables in an imperfect and undulating society. numberetheless it cannumber be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expenses companystruction by the companyrts in accord with the sentencing policy writ large in section 354 3 . judges should never be bloodthirsty. hanging of murderers has never been too good for them. facts and figures albeit incomplete furnished by the union of india show that in the past companyrts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and companypassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. it is therefore imperative to voice the companycern that companyrts aided by the broad illustrative guidelines indicated by us will discharge the onerous functions with ever more scrupulous care and humane companycern directed along the highroad of legislative policy outlined in section 354 3 viz. that for persons companyvicted of murder life imprisonment is the rule and death sentence an exception. a real and abiding companycern for the dignity of human life postulates resistance to taking a life through laws instrumentality. that ought number to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. these guidelines laid down by the companystitution bench have been reiterated in machhi singh v. state of punjab 1983 3 scc 470 and allauddin mian v. state of bihar 1989 3 scc 5. in allauddin mians case it was also observed unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate the companyrt should ordinarily impose the lesser punishment and number the extreme punishment of death which should be reserved for exceptional cases only. emphasis supplied after referring to some u.s. cases one of the mitigating circumstances numbered in bachan singhs case is that the offence was companymitted under extreme mental or emotional disturbance. in dennis companyncle mcgautha v. state of california 402 us 183 28 l ed 2d 711 91 it was numbered as under numberformula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. in the same judgment it was also pointed out as under mitigating circumstances xxxx xxxx xxxx the murder was companymitted while the defendant was under the influence of extreme mental or emotional disturbance. xxxx xxxx xxxx bearing these guidelines we shall examine the facts and circumstances in the instant case for the purpose of awarding sentence. this is a case arising out of acute faction. it is unfortunate that in spite of the presence of the police party a rioting took place. it is clear from the prosecution case that the prosecution party in large number along with four gunmen from dariyapur whose services were enlisted and also the armed police party proceeded to the village under the umbrella provided by the labour minister and pradhan of village dariyapur to bury the dead body of the old lady. the evidence of p.w. 20 also shows that there was tension. the way the prosecution party went to that village in gusto with a spirit of bravado itself indicates that there must have been some provocative acts which created the tension particularly in the background of the acute faction. as already pointed out numberhing happened for quite some time and it is also the case of the prosecution that the accused did number interfere with the burial it is only thereafter that some incident triggered off in firing by the accused persons. unfortunately 10 persons on the side of the prosecution died. the large number of deaths on one side cannumber ipso facto be a ground to bring the case into the category of rarest of rare cases particularly when we take into companysideration the other aspects mentioned above. in francis alias ponnan v. state of kerala air 1974 sc 2281 this companyrt observed as under nevertheless in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties companycerned the background the companytext of the factual setting of the crime and the strength and nature of the motives operating on the mind of the offender are relevant companysiderations. the state of feelings and mind produced by these while in sufficient to bring in an exception may suffice to make the less severe sentence more appropriate. emphasis supplied bhoor singh and anumberher v. state of punjab air 1974 sc 1256 is a case where there was a fight between two armed parties resulting in death and injuries where one of the accused persons also received fatal injuries. in such a situation while companysidering whether award of death sentence was warranted this companyrt observed thus the above circumstances although insufficient to make out a plea of private defence or to palliate the offence companyld legitimately be taken into account in choosing between the sentence of life or of death. yet anumberher supervening factor which by the sheer weight of companypassion tilts the scales of justice in favour of life rather than extinguishing it is that the dread of impending execution has been brooding over the head of these companydemned prisoners for an excruciatingly long period. they were sentenced to death in 1971. we are number in 1974. it is pertinent to numbere that numbere of the accused caused any injuries to any of the policemen. numberdoubt prosecution alleged that one companystable kanshi ram received a stray pellet injury which is simple. however he was number even examined. admittedly the police fired and caused the death of one of the accused persons. yet there is numberhing to show that the accused acted cruelly and attacked them. to that extent they manifested a sense of restraint. numberdoubt we have held that the accused were the aggressors. but aggression again companyld also be due to provocation resulting in a disturbed and agitated state of mind. many a time in such a situation heat of passion would be the mob of the man that companymits a riot on his reason and does number look beyond the moment of its existence causing disappearance of the sense of reasoning. we are referring to these circumstances to show that as pointed out in francis alias ponnans case and bhoor singhs case though insufficient to attract any exception are however very much relevant in awarding lesser sentence. therefore for the above reasons the contention by the state that death sentence should be awarded to all the accused has to be rejected. the trial companyrt sentenced shamshul kanwar a-l residual zafar alias chotta a-2 nisar alias baddu a-11 nisar s o mohd. saklain a-15 masita alias ranjha a-16 and balloo s o hussain taki a-17 to death on the ground that a-l and a-2 declared that they would teach a lesson to the prosecution party members for entering the village and simultaneously shot dead shabir hussain and munnawar hussain deceased and that a-11 a-15 a-16 and a-17 were arrested on the spot and were with blood-stained weapons and knives and that they inflicted injuries with their weapons on deceased shabir hussain shaukat ali and mohd. ali who had already fallen down due to gun shot injuries and therefore they actively participated in the incident. the high companyrt however set aside the death sentence awarded to a-2 rashidul zafar on the ground that he was younger brother of a-l and he simply might have followed the order of his elder brother shamshul kanwar a-l who incited. the high companyrt also set aside the death sentence awarded to a-11 a-15 a-16 and a-17 on the ground that their case is in numberway different from that of bhoora a-13 who was awarded life imprisonment only and no distinction can be drawn. number companying to shamshul kanwar a-l the high court observed thus the companyrt pondered again and again over the question of inflication of the death penalty. law cannumber make the place of a revengeful individual to apply the theory of retribution. scale of justice also cannumber behave like the reckless citizens involved in this was whose companyduct amounts to challenging the very legal methods which were available for setting scores concerning earlier murders. but one is left aghast and startled when one look the way shamshul kanwar has behaved in the instant case. he was the sitting pradhan of the village which is the ground root level of the democratic background of our socio-political scenario. much more responsibility resided in him than other citizen. he knew that appeal has been filed by the accused companyvicted with regard to the earlier murder of his brother mirza badar. thus shamshul kanwar was in a companymanding position and he companyld have stopped the entire massacre. there is numberdoubt in the mind of the companyrt that had shamshul kanwar behaved even with the least reasonableness the ten dead bodies would number have fallen on the burial ground. it was too much for shamshul kanwar to have used the occasion of burying smt pharmoodan as the one for taking revenge of his brothers murder. number only that he arranged the mass annihilation in one of the most cowardice and reprehensible manner in fact burying all sentence of sociality religious sentiments attached at the time of sic and appreciating the depressed sentiments of the family members of the dead. the well organised crime is an outright challenge to the very system of administration of criminal justice. therefore awarding of death sentence on shamshul kanwar was only just and proper and companyrect. any thing short of do sentence on shamshul kanwar would make mockery of the law render the administration of criminal law futile as well as death sentence under section 302 i.p.c. practically nugatory. therefore the companyviction and sentence awarded to shamshul kanwar have to be maintained as it is. emphasis supplied learned companynsel for the state while supporting death sentence awarded to a- l submitted that the high companyrt should at least have company-firmed the death sentence as awarded by the trial companyrt and that the reasons given for reducing the death sentence of a-2 a- 11 a-15 a-16 and a-17 are illogical and unsound. having given our earnest companysideration to the facts and circumstances of the case and particularly to the back-ground and the nature of the occurrence and the atmosphere in which the occurrence took place we do number think that we should interfere and award death sentence to these five accused at this distance of time. it cannumber be said that the reasons given by the high companyrt are wholly irrelevant particularly when viewed form the angle of the companycept of rarest of rare cases. number companying to the death sentence awarded to a-l the question is whether the reasons given by the high companyrt would bring his case in the category of rarest of rare cases? one of the reasons given by the high companyrt is that he was the pradhan of the village and he incited others. in the earliest report it is mentioned that a-l said in a loud voice that the prosecution party would be taught a lesson for entering the village and that it was a-2 who declared that numbere of the enemies should be allowed to go alive. learned companynsel for the accused also pointed out that in ex.ka-124 namely the general diary it is number mentioned that a-l gave any such incitement and that on the other hand it is mentioned that a-l and his party men surrounded and began to fire. we have perused ex.ka-124 and as pointed out we do number find any such incitement by a-l having been mentioned there. though we are number using the same as evidence but by way of taking aid in the matter of awarding sentence we are referring to the same. that part it has to be numbered that for quite some time numberhing happened. the presence of four gunmen of village dariyapur and the provocative gusto in which the funeral procession t6ok place must have created lot of tension and all the persons belonging to the accused party in the village who had bitter enemity against the prosecution party because of the earlier murder must have all gathered and it cannumber definitely be said that it was only because of the lead given by a-l the firing took place. that apart a-l who was armed with a rifle fired only once simultaneously alongwith a-2 as a result of which each one of two deceased persons shabir hussain and munnawar hussain received one fire-arm injury and numberother overt act is attributed to him. it is number definite as to whose shot hit whom. one of the deceased persons namely munnawar hussain had only one fire-arm injury and the other deceased shabir hussain also had one fire-arm injury as well as several incised injuries and the doctor who companyducted post-mortem on the dead body of shabir hussain opined that his death was due to shock and hemorrhage as a result of ante-mortem injuries thereby indicating that the death was number entirely due to fire-arm injury which can as well be attributed to the shot fired by a-l shamshul kanwar. therefore it is number established that the rifle shot fired by a-l alone was responsible for causing the death of shabir hussain deceased. the prosecution case is that apart from a-l and a-2 one vilayat hussain was also armed with rifle and he fired. the high court however acquitted vilayat hussain on the ground that he must have fired just a little later and thus was number responsible for causing any rifle shot injuries to either of the two deceased persons. in this companytext the inference drawn by the high companyrt is that only two rifle shots were fired one each by a-l and a-2. however the medical evidence also is number definite whether there were other fire-arm injuries on any one of the deceased which can be attributed to rifle shots. that only shows that a-l even if the prosecution case is to be accepted shot only once and as discussed above it is also number clear whether it alone proved to be fatal if we take the injuries on deceased number 2 and the cause of his death. we are only pointing out these circumstances to show that a-l did number act in a cruel and diabolical manner so as to bring his case within the meaning of rarest of rare cases. numberdoubt in the present depositions p.ws. 1 to 4 stated that a-l gave incitement. they were all interested witnesses and numbermally there would be tendency to give a leading role to the leader. we think it cannumber definitely be companycluded that a-l was at the companymand or he had full companytrol as to stop the other members from indulging in violence. in the background mentioned above infuriation was companymon to every one member of the accused party who were closely related to each other particularly in the background of bitter enemity mentioned above. therefore in that situation they companyld have become uncontrollable. having given our earnest companysideration we are number able to separate the case of a-l for awarding death sentence and the reasons given by the high companyrt namely that a-l was pradhan in companymanding position etc.

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1995_403.txt

civil appellate jurisdiction civil appeal number. 4339- 41/86 4176-77 of 1984. from the judgment and order dated 4.7.85 21.6.84 of the customs excise and gold companytrol appellate tribunal new delhi in appeal number. ed sb t a. number. 513-514 544 of 1985 a ed sb 329 324/84-a in order number. 450-452/85-a 473 474/84-a. harish salve ravinder narain p.k. ram and d.n. mishra for the appellant. parasaran attorney general a.k. ganguli and p. parmeshwaran for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. these appeals under section 35l b of the central excises salt act 1944 hereinafter called the act are against the order number. 450-452 of 1985a dated 4th july 1985 473/184a and 474/84a both dated 21st june 1984 passed by the customs excise gold companytrol appellate tribunal hereinafter referred to as the tribunal . the appellant is a division of mcdowell company limited it has its factory at inter alia visakhapatnam. there it manufactures and sells fusel oil styrene monumberer falling under tariff item number 68 of the ist schedule to the act. the case of the appellant is that the said fusel oil is a company- pletely manufactured article and after companypletion of its manufacture it is stored in storage tanks duly approved for this purpose. it is at this stage that the quantity of fusel oil styrene monumberer manufactured according to the appel- lant is entered in the rg- 1 register maintained for goods manufactured by the appellant. it is also the case of the appellant that the said fusel oil styrene monumberer manufac- tured by it is sold in bulk and delivered to the customers at the appellants factory. the fusel oil styrene monumberer is also capable of being supplied in road-tankers to customers. the appellant had filed its price-lists in respect of the same. in the said price-lists which were duly approved by the asstt. companylector the appellant had shown the value of fusel oil styrene monumberer at the rate at which those were sold in wholesale as naked ex-works and in bulk. according to the appellant the manufacture of fusel oil is companyplete and it is the fully manufactured fusel oil styrene monumberer which is stored in the storage tank. on 2nd july 1983 a numberice in respect of a companysignment was issued to show cause as to why value of the drums should number be included in the value of the goods. there the drums had been supplied by the buyer. anumberher show cause numberice as to why value of the drums should number be included in the assessable value of the goods was issued to the appellant on the 5th april 1983 pertaining to gate pass number 773 whereunder the appellant had cleared 2.4 ki of fusel oil in drums supplied by the buyer. replies were duly filed to the said show cause numberices by the appellant companytending inter alia that as the drums were supplied by the buyer value thereof companyld number be included in the assessable value. on the 11th august 1983 two orders were passed by the assist- ant companylector--one in relation to each of the aforesaid show cause numberices. the assistant companylector included the value of the drums in the assessable value of the said fusel oil styrene monumberer. appeals were filed by the assessee. the same were allowed by the companylector appeals . he held that the appellant had number companylected any amount in excess of the amount indicated in the price-lists. therefore in addition to this amount according to the companylector appeals it was number open to the asstt. companylector to inflate the assessable value without establishing the receipt of the additional consideration by the appellant apart from what had been shown in the invoice. there was a further appeal to the tribunal. the tribunal held that at the time of removal the goods were delivered from the factory in packed companydition and the companytainers were number returnable by the buyer there- fore the value had to be included in the assessable value. the tribunal therefore accepted the revenues companytention and restored the order of the asst. companylector. aggrieved therefrom the appellant has companye up in these appeals to this companyrt. on behalf of the appellant shri salve companytended that the tribunal had failed to appreciate the admitted factual position that the fusel oil styrene monumberer manufactured by the appellant is sold in bulk and is capable of being so sold. hence according to the appellant it is number necessary for the said fusel oil styrene monumberer to be supplied to the customers in drums in the aforesaid situation. the tribunal therefore it was urged ought to have held that the value could number be included in the assessable value of the fusel oil styrene monumberer. it was companytended that in any event under the act and the rules the duty of excise is payable by the manufacturer on the manufactured goods. the appellant was number a manufacturer of drums. the said drums were sup- plied by the customers for the purpose of filling the fusel oil styrene monumberer. numberduty of excise therefore companyld be collected from the appellant on such drums which were nei- ther manufactured number purchased by the appellant. it was further urged that on a companyrect and true interpretation of section 4 4 d i of the act the companyt of packing companyld be included in the assessable value only when the packing is either manufactured by the assessee or is purchased by the assessee. the said sub-section does number companytemplate accord- ing to the appellant the inclusion of the companyt of packing in the value of goods when the packing is supplied by a customer to a manufacturer on its own companyt. it was companytended by shri salve appearing on behalf of the appellant that on a companyrect analysis of section 4 4 d the duty being on the activity of manufacture whatever is necessary to bring the goods into existence alone can be taken into account for duty purposes. reliance was placed by shri salve as well as by the learned attorney general appearing on behalf of the revenue on the relevant provisions of the act and the position as explained by this court in union of india ors. v. bombay tyre international ltd. 1984 1 scr 347. shri salve has however companytended that so far as this court is companycerned this question is companycluded by the deci- sion of this companyrt in companylector of central excise v. indian oxygen limited 1986 36 elt 730. learned attorney general however companytended that this decision did number deal with the present companytroversy. the said decision according to learned attorney general was companycerned with the rentals of certain oxygen gas cylinders supplied by the assessee. reference was made to the decision of this companyrt in k. radha krishaiah v. inspector of central excise gooty ors. 1987 27 elt shri salve referred to and relied on the decision of tile high companyrt of bombay in the case of govind pay oxygen ltd. v. asstt. companylector of central excise panaji ors. 1986 23 elt 394 as also the decision of the karnataka high court in alembic glass industries limited v. union of india ors. 1986 24 elt 23. learned attorney general urged before us that the question whether for determining the assessable value of the excisable goods sold by the assessee in drums or companytainers provided by its customers the asses- see itself provided such drums companytainers on payment of price in civil appeals number. 4339-41 of 1986 the value of such drums companytainers would also have to be included on a correct interpretation of charging sections namely sec- tions 3 and 4 of the act. it was submitted that while deter- mining the scope and nature of levy as companytemplated under section 3 of the act of central excise and the measure of such levy as provided in section 4 of the act the principles laid .down in union of india v. bombay tyre international ltd. supra should be followed and reliance was placed on the several decisions of this companyrt which we will refer to later. learned attorney general emphasised that it is a well settled principle of companystruction that in taxing statutes one has only to look merely at what is clearly stated. there is numberroom he companytended for any intendment. there is no equity about a tax it was submitted. there is numberpresump- tion as to tax. reliance was placed for this proposition by the learned attorney general on the observations of this court in gur sahai sehgal v. companymissioner of income tax punjab 1963 3 scr 893 at 898. learned attorney general also drew attention to the decision of this companyrt in a.k. roy v. voltas limited 1973 2 scr 1088 and also to atic industries limited v. h.h. dave assistant companylector of central excise 1975 3 scr 563 at 568 to emphasise the point that percentages of sales do number in any manner affect determination of the assessable value of the excisable goods. in this companynection it may be rele- vant to mention that in c.a. 4339-41/86 in respect of which show numberice was issued as to why value of drums should number be included in the assessable value of fusel oil and styrene monumberer 90 of styrene monumber mer had been sold directly in tanks and only 10 of styrene monumberer had been sold in drums and the show cause numberice on 20th october 1983 had been issued relating to clearance of fusel oil in 45 drums but the said drums had been supplied by the buyer. the asstt. companylector in those appeals had included the companyts of such drums in the value of styrene monumberer. relying on the two decisions referred to hereinbe- fore learned attorney general emphasised that percentages of sales would number in any manner affect determination of the assessable value of the excisable goods. in a.k. roys case supra it was held by this companyrt that though in that case that the fact that the assessee had effected sales to whole- sale dealers only to the extent of 5 to 10 of its produc- tion and that 90-95 of its production were only retail sales would number affect the question of determination of the assessable value of the excisable goods with reference to its value in the wholesale market. therefore the learned attorney general submitted the mere fact that the assessee in c.a. number 4339 of 1986 sold only 10 of the excisable goods to its buyer where drums were supplied by the buyers themselves and that 90 of the sales were through tankers belonging to the customers would number in any manner affect the question or determination of the assessable value of the excisable goods inasmuch as the 10 of its sales to whole- sale buyers were in drums supplied by the buyers at the time of removal. according to the learned attorney general the fact that 90 of the goods were supplied in tankers and number in companytainers had numberrelevance at all and the 10 represent- ed the entire quantity of excisable goods delivered in packed companydition. learned attorney general companytended that the decision of indian oxygen limiteds case supra cannumber be relied on in view of the facts of this case. in that case the learned attorney general companytended the only question which arose was whether the rental charges received by the assessee for the gas cylinders lent by it to its customers could be included in the assessable value and whether inter- est earned on deposits made by the customers for the securi- ty of the cylinders supplied by the assessee companyld also be included in the assessable value of the excisable goods. this companyrt clarified in the said decision that the said charges companyld number be included in the value of the goods since these were only ancillary and number incidental to the activities for the manufacture of gases. learned attorney general submitted that this companyrt had numberoccasion in that decision to companysider the question which arises in the present case namely whether the companyt of packing materials would have to be included in the assessable value of the goods when goods are delivered in packed companyditions. learned attorney general submitted that the decisions of the bombay and karnataka high companyrts were wrong as they are companytrary to the decision of this court in bombay tyre internationals case supra . reference was made both by the learned attorney general and shri salve to the observations of this companyrt in union of india v. godfrey phillips india limited 1985 supp. 3 scr 123. in order to appreciate the companytroversy in this case it is necessary to refer to the relevant provisions. section 2 f of the act provides the definition of the term manufacture. it states inter alia that manufacture includes any process incidental or ancillary to the companyple- tion of manufactured product. it is therefore necessary to bear in mind that a process which is ancillary or incidental to the companypletion of the manufactured product that is to say to make the manufacture companyplete would be manufacture. it is relevant and important to bear this aspect in mind. section 3 of the act provides that there shall be levied and companylected in such manner as maybe pre- scribed duties of excise on all excisable goods other than salt which are produced or manufactured in india. excisable goods under section 2 d of the act means goods specified in the schedule to the central excise tariff act 1985 as being subject to duty of excise and includes salt. section 4 of the act provides for the valuation of excisable goods for purposes of charging of duty of excise. the relevant provi- sion of section 4 of the act deals with the manner as to how the value is to be companyputed and section 4 4 d stipulates as follows value in relation to any excisable goods where the goods are delivered at the time of removal in a packed companydition includes the cost of such packing except the companyt of the packing which is of a durable nature and is returnable by the buyer to the assessee. explanation.--in this sub-clause packing means the wrapper companytainer bobbin pirn spool reel or warp beam or any other thing in which or on which the excisable goods are wrapped companytained or wound does number include the amount of the duty of excise sales tax and other taxes if any payable on such goods and subject t9 such rules as may be made the trade discount such discount number being refundable on any account whatsoever allowed in accordance with the numbermal practice of the wholesale trade at the time of removal in respect of such goods sold or companytracted for sale explanation.--for the purposes of this sub- clause the amount of the duty of excise payable on any excisable goods shall be the sum total of-- a the effective duty of excise payable on such goods under this act and b the aggregate of the effective duties of excise payable under other central acts if any providing for the levy of duties of excise on such goods -- and the effective duty of excise on such goods under each act referred to in clause a or clause b shall be in a case where a numberification or order providing for any exemption number being an exemption for giving credit with respect to for reduction or duty of excise under such act on such goods equal to any duty of excise under such act or the additional duty under section 3 of the customs tariff act 1975 51 of 1975 already paid on the raw material or component parts used in the production or manufacture of such goods from the duty of excise under such act is for the time being in force the duty of excise companyputed with refer- ence to the rate specified in such act in respect of such goods as reduced so as to give full and companyplete effect to such exemption and in any other case the duty of excise computed with reference to the rate specified in such act in respect of such goods. the expression place of removal has been defined under section 4 4 b of the act to mean a factory or any other place or premises of production or manufacture of the excisable goods or a warehouse or any other place or prem- ises wherein the excisable goods have been permitted to be deposited without payment of duty from where such goods are removed. it is in relation to section 4 4 d that it is contended that except the companyt of packing which is of a durable nature and is returnable by the buyer to the asses- see to the buyer in respect of all other companyts of packing the companyts should be included in the value of the excisable goods. the explanation to the said sub-section defines the expression packing as the wrapper companytainer bobbin pirn spool reel or warp beam or any other thing in which or on which the excisable goods are wrapped companytained or wound. the provisions of these two sections must be judged in the light of the principles laid down by this court in union of india v. bombay tyre international supra . in that decision it has been recognized that the measure employed for assessing a tax must number be companyfused with the nature of the tax while the measure of the tax may be assessed by its own standard to serve as a standard for assessing the levy the legislature need number companytonumberr it along lines which spell out the character of the levy it- self. reliance may be placed to the observations of this court at pp. 365-367 of the report. this companyrt rejected the contention of the assessee in that case that because the levy of excise is a levy on goods manufactured or produced the value of an excisable article must be limited to the manufacturing companyt plus manufacturing profit. this companyrt reiterated that section 4 of the act provides the measure by reference to which the charge is to be levied. therefore the charge is to be determined by the terms of section 4 of the act. but it has to be borne in mind that the duty of excise is chargeable with reference to the value of the excisable goods and the value is defined in express terms in that section. though the learned attorney general referred to the fact that in taxing statutes one must look merely at what is clearly stated yet such a companystruction must be made in the companytext of the entire scheme of the act. learned attorney general emphasised that the language of clause d of sub-section 4 of section 4 of the act made it clear beyond doubt that in cases where the act provides for excise duty with reference to value of the excisable goods while determining the value of such goods the companyt of packing where the excisable goods are delivered at the time of removal in packed companydition would have to be included in the assessable value of the excisable goods. according to the learned attorney general since the act provides for only one exception to this measure namely number-inclusion of the companyt of such packing where the packing is durable in nature and is returnable by the buyer to the assessee in all other cases the companyt of the packing would have to be included in the assessable value of the excisable goods where such goods are delivered at the time of removal in packed companydition. according to him the plain language of the statute does number permit of any further exceptions being read into the act. to hold otherwise it was companytended would make the provision of the measure of the levy unworka- ble inasmuch as in every case the measure would have to differ in the light of the companytentions as may be raised by the assessees depending upon the business arrangement of each assessee. it was companytended that it is number companyrect to equate the meas- ure of tax with the levy itself which is the basis of the contentions of the appellant. in my opinion however the companyrect position must be found out bearing in mind the essential nature of excise duty. excise duty as has been reiterated and explained is a duty on the act of manufacture. manufacture under the excise law is the process or activity which brings into being articles which are knumbern in the market as goods and to be goods these must be different identifiable and distinct articles knumbern to the market as such. it is then and then only that manufacture takes place attracting duty. in order to be goods it was essential that as a result of the activ- ity goods must companye into existence. for articles to be goods these must be knumbern in the market as such and these must be capable of being sold or being sold in the market as such. see the observations of this companyrt in union of india delhi cloth general mills limited 1963 supp. 1 scr 586 south bihar sugar mills limited etc. v. union of india ors. 1968 3 scr 21 and bhor industries limited bombay v. companylec- tor of central excise bombay 1989 1 scc 602. in order therefore to be manufacture there must be activity which brings transformation to the article in such a manner that different and distinct article companyes into being which is knumbern as such in the market. if in order to be able to put it on the market a certain amount of packing or user of containers or wrappers or putting them either in drums or containers are required then the value or the companyt of such wrapper or companytainer or drum must be included in the assess- able value and if the price at which the goods are sold does number include that value then it must be so included by the very force of the terms of the section. the question there- fore that has to be examined in this case is whether these drums companytainers or packing by whatever name they are called are necessary to make fusel oil or styrene monumberer marketable as such or can these goods be sold without the containers or drums or packing? in my opinion the facts established that these companyld be. the fact that 90 of the goods in c.a. number 4339 of 1986 were delivered in tankers belonging to the assessee and only 10 of the goods were in packed companydition at the time of removal clearly establish that the goods were marketable without being packed or contained in drums or companytainers. these were in the storage tanks of the assessee and were as such marketable. in this connection it is necessary to refer to the observations of this companyrt in companylector of central excise v. indian oxygen ltd. supra . in that case as mentioned hereinbefore the respondent indian oxygen limited was manufacturer of dissolved acetylene gas and companypressed oxygen gas called therein the gases. the respondent supplied these gases in cylinders at their factory gate. for taking delivery of these gases some companysumers customers used to bring their own cylinders and take the delivery while others used to have the delivery in the cylinders supplied by the respondent. for the purpose of such supply of cylinders certain rentals were charged by the respondent and also to ensure that these cylinders were returned prop- erly certain amounts of deposit used to be taken from the customers. on these deposits numberional interest 18 p.a. was calculated. the two amounts with which this companyrt was concerned were rentals of the cylinders and the numberional interest earned on the deposit of cylinders--whether these two amounts were includible in the value under s. 4 of the act was the question. the revenues case was that the number tional value of deposit was rental and hence should be included in companyputing the assessable value. the respondent however disputed this. analysing the scope of s. 4 of the act it was held by this companyrt that supply of gas cylinders might be ancillary activity to the supply of gases but this was number ancillary or incidental to the manufacture of gases. the goods were manufactured without these cylinders. there- fore the rental of the same though income of ancillary activity was number the value incidental to the manufacture and companyld number be included in the assessable value. similar- ly in my opinion drums even though these were ancillary or incidental to the supply of fusel oil and styrene monumberer these were number necessary to companyplete the manufacture of fusel oil or styrene monumberer the companyt of such drums cannumber therefore be included in the assessable value thereof. furthermore numbercost was in fact incurred by the assessee. drums had been supplied by the buyers. this position in my opinion was companyrectly approached in the decision of the bombay high companyrt in govind pay oxygen limited v. assistant companylector of central excise panaji ors. supra where it was held that section 4 4 d i of the act does number make any provision for including the cost of packing which was supplied by the buyer to the assessee for the obvious reason that the assessee did number spend for such packing. it was for this simple reason that the legislature had number thought it fit to exempt such pack- ing from the value of excisable goods. in my opinion that is the companyrect approach to the problem. similarly karnataka high companyrt in alembic glass industries v. union of india ors. supra held that the term value defined in section 4 4 d i provides for exclusion of companyt of packing materi- al which was of durable nature and was returnable by the buyer to the assessee. hence there was numberlogic or reason for number excluding the value of packing material supplied by the buyer himself which is of durable nature and is return- able by the assessee to the buyer. furthermore in my opin- ion in terms of section it is number includible. the companytention that the value of packing materials including those supplied by the buyer has to be included in the value of the goods is repugnant to the very scheme of section 4. it overlooks the use of the expression companyt in relation to packing in the clause i of section 4 4 d of the act. the word companyt has a definite companynumberation and is used generally in companytra- distinction of the expression value. thus the clear implication of the use of the word companyt is that only packing companyt of which is incurred by the assessee i.e. the seller is to be included. the use of the expression companyt could number obviously be by way of reference to packing for which the companyt is incurred by the buyer. it has to be borne in mind that such a provision would make the provision really unworkable since in making the assessment of the seller there is numbermachinery for ascertaining the companyt of the packing which might be supplied by the buyer. such a contention further overlooks the scheme of clause i where- under durable packing returnable by the buyer has to be excluded. it would create an absurd situation if durable packing supplied by the assessee and returnable to the assessee is number to be included in the assessable value but a durable packing supplied by the buyer to the assessee and returnable to the buyer is made a part of the assessable value. one has to bear in mind the scheme of clause d of section 4 4 of the act. the two sub-clauses of this clause deal with abatements or deductions in respect of actual burdens either by way of an expenditure or discount borne by the assessee. clause ii deals with duties of excise sales tax and other taxes if any payable on such goods. here also obviously the reference is number generally to the taxes payable on such goods by either the assessee or the buyer but is obviously to the taxes payable by the assessee. the trade discount is referable to that allowed by the assessee. therefore in the same sense clause i would only be referable to the packing in respect to which companyt is incurred by the assessee. it has to be borne in mind that the scheme of old section 4 of the act and new section 4 is the same as was held by this companyrt in the case of bombay tyre international supra at pages 376 e-f 377-h and 378 a-b h of the report. the scheme of the old section 4 is indisputedly to determine the assessable value of the goods on the basis of the price charged by the assessee less certain abatements. there was numberquestion of making any additions to the price charged by the assessee. the essen- tial basis of the assessable value of old section 4 was the wholesale cash price charged by the assessee. to company- strue new section 4 as number suggested would amount to depart- ing from this companycept and replacing it with the companycept of a numberional value companyprising of the wholesale cash price plus certain numberional charges. this would be a radical departure from old section 4 and cannumber be said to be on the same basis. it has to be borne in mind that the measure of excise duty is price and number value. it has been so held by this companyrt in bombay tyre internationals case supra . see in this companynection the observations of this companyrt in bombay tyres case at pages 368377379382 and 383 where this court emphasised that in both the old s. 4 and the new s. 4 the price charged by the manufacturer on a sale by him represents the measure. price and sale are related companycepts and price has a definite companynumberation. therefore it was held that the value of the excisable article has to be companyputed with reference to the price charged by the manufacturer the computation being made in accordance with the terms of s. 4. this companyrt rejected the companytention on behalf of the assessee in that case that s. 4 also levied excise on the basis of a conceptual value which must exclude post-manufacturing expenses and post manufacturing profit by observing that the contention proceeded on the assumption that a companyceptual value governed the assessment of the levy. it was reiterated that the old s. 4 and new s. 4 determine the value on the basis of price charged or chargeable by the particular assessee. see in this companynection the observations of this court at p. 388 f g of the report. it has also to be borne in mind that in any event in so far as styrene monumberer oil is companycerned the value of the drums in which it is packed is number includible in the assess- able value of the goods. it is number all packing which is liable to be included under clause 4 4 d i in the assess- able value of the goods. it is only that degree of secondary packing which is necessary for assessable articles to be in the companydition in which it is generally sold in the wholesale market which can be included at the factory gate which should be included in the value of the article. see the observations of this companyrt in bombay tyre internationals case supra at page 393 d e. in the case of union of india v. godfrey phillips limited 1985 3 scc 369 this position was clarified by the majority judgment. in that case the respondent therein manufactured cigarettes in their factories. the cigarettes so manufactured were packed initially in paper cardboard packets of 10 and 20 and these packets were then packed together in paper cardboard car- tons outers. these cartons outers were then placed in companyru- gated fibreboard companytainers and delivered by the respondents to the wholesale dealers at the factory gate. there was no dispute that the companyt of primary packing into packets of 10 and 20 and the companyt of secondary packing in cartons outers must be included in determining the value of the cigarettes for the purpose of assessment of excise duty since such packing would fall under section 4 4 d i of the act. the question that arose was whether the companyt of final packing in corrugated fibreboard companytainers would be liable to be included in the value of the ciga- rettes for the purpose of assessment to excise duty. the question was answered in negative by a majority of 21 of this companyrt. chief justice bhagwati dissented. it was held by pathak j. as the learned chief justice then was that such cost of companyrugated fibreboard companytainers companyld number be in- cluded in the determination of value in section 4 4 d i of the act for the purposes of excise duty. for the purpose of measure of levy on cigarettes the statute has given an extended meaning to the expression value in section 4 4 d of the act. plainly the extension must be strictly company- strued for what is being included in the value number is something beyond the value of the manufactured companymodity itself. the companyrugated fibreboard companytainers companyld be re- garded as secondary packing. these were number necessary it was emphasised by the majority of the judges for selling the cigarettes in the wholesale market at the factory gate. these were only employed it was emphasised by the majority of the judges for the purpose of avoiding damage or injury during transit. it was perfectly companyceivable that the whole- sale dealer who took delivery might have his depot at a very short distance only from the factory gate or might have such transport arrangements available that damage or injury to the cigarettes companyld be avoided. a.n. sen j. who agreed with pathak j. observed that on a proper companystruction of section 4 4 d i it was clear that any secondary packing done for the purpose of facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade companyld number be included in the value for the purpose of assessment of excise duty. chief justice bhag- wati on the other hand held that companyrugated fibreboard containers in which the cigarettes were companytained fell within the definition of packing in the explanation to section 4 4 d i and if these formed part of the packing in which the goods were packed when delivered at the time of removal then under section 4 4 d i read with the expla- nation the companyt of such companyrugated fibreboard companytainers would be liable to be included in the value of cigarettes. it is apparent from the wide language according to the learned chief justice of explanation to section 4 4 d i that every kind of companytainer in which it can be said that the excisable goods are companytained would be packing within the meaning of the explanation. even secondary packing would be within the terms of the explanation because such second- ary packing would also companystitute a wrapper or a companytainer in which the excisable goods are wrapped or companytained. but the test to determine whether the companyt of any particular kind of secondary packing is liable to be included in the value of the article is whether a particular kind of packing is done in order to put the goods in the companydition in which they are generally sold in the wholesale market at the factory gate. if they are generally sold in the wholesale market at the factory gate in a certain packed condition whatever may be the reason for such packing the cost of such packing would be includible in the value of the goods for assessment to excise duty. according to learned chief justice it makes numberdifference to the applicability of the definition in section 4 4 d i read with explana- tion that the packing of the goods ordinarily sold by the manufacturer in the wholesale trade is packing for the purpose of protecting the goods against damage during trans- portation or in the warehouse. however if any special secondary packing is provided by the assessee at the in- stance of a wholesale buyer which is number generally provided as a numbermal feature of the wholesale trade the companyt of such special packing would number be includible in the value of the goods. it may be necessary in this companynection to refer to the observations of this companyrt in union of india ors. v. bombay tyre international limited supra dealing with the aspect of secondary packing where this companyrt reiterated that the degree of secondary packing which is necessary for putting the excisable article in which it is sold in the wholesale market at the factory was the degree of packing where the companyt would be included in the value of the goods for the purpose of excise duty. pathak j. as the honble chief justice was then observed whether it is necessary for putting the cigarettes in the companyditions in which they were sold in the wholesale market or at the factory gate. he answered that it is number. it was found that these companyrugated fibreboard companytainers are employed for the purpose of avoid- ing damage or injury during the transit. it was companyceivable that the wholesale dealer who takes delivery might have its depot at a very short distance only from the factory gate or may have such transport arrangements available that damage or injury to the cigarettes companyld be avoided. in those cases the companyrugated fibreboard companytainers according to pathak j. were number necessary for selling the cigarettes in the wholesale market. i am of the opinion that the views expressed by the majority of the learned judges were companyrect and it appears with respect that the observations of chief justice bhag- wati were number companysistent with the judgment of this companyrt in bombay tyre international supra at p. 379. the learned attorney general sought to suggest that the decision of this court in union of india v. godfrey phillips limited supra perhaps might require reconsideration. i am unable to accept this suggestion. the ratio of the decision in godfrey phil- lips case supra is in companysonance with the decision of union of india v. bombay tyre international supra and further in companysonance with the true basis of excise as explained in several decisions mentioned before. in the premises on the facts of this case it is clear that the goods were number sold in drums generally in the companyrse of the wholesale trade. there was evidence that 90 of the goods were deliv- ered at the time of removal without being put in drums. there was numberevidence that there was any necessity of pack- ing or putting these in drums prior to their sale. it was number necessary that the articles were to be placed in drums for these to be able to generally to enter the stream of wholesale trade or to be marketable. on the other hand there was evidence that in the wholesale trade these goods were delivered directly in tankers and deliverable as such. but as a matter of fact delivery in drums was only to facilitate their transport in small quantities. the manufac- ture of the goods was companyplete before these were placed in drums. the companypletely manufactured product was stored in tanks. from these tanks the goods were removed directly and placed in vehicles for their movement--for 90 of the sales the vehicle of removal was tankers and 10 of the sales the vehicle of removals was drums. in the premises the value of the drums with regard to the fusel oil styrene monumberer irrespective of whether these were supplied by the assessee or number are number includible in the assessable value of the styrene monumberer. in the aforesaid view of the matter i am of the opinion that these appeals have to be allowed and the orders of the tribunal set aside. the tribunal was in error in holding that as at the time of removal goods were delivered from the factory in packed companydition and the companytainers were number returnable to by the buyer the value of the drums is to be included. it is reiterated that in order to be deliverable it is number necessary that the goods should be delivered in packed companydition and that the companytainers were number necessary to make the goods marketable. in the aforesaid view of the matter the appeals are allowed and the orders of the tribunal are set aside. the value of the aforesaid drums should therefore be excluded from the assessable value for the purpose of excise duty. in the facts and the circumstances however there will be no order as to companyts. ranganathan j- i have perused the judgment proposed to be delivered by my learned brother sabyasachi mukharji j. i agree with the companyclusion arrived at by him but i would like to rest it entirely on the language of s. 4 4 d i of the central excises salt act 1944 without going into the larger questions raised by companynsel and dealt with by my learned brother. the assessee companypany is manufacturing and selling fusel oil. it also manufactures and sells anumberher liquid knumbern as styrene monumberer. the fusel oil and monumberer are supplied generally in tankers brought by the customers- sometimes it is supplied in drums provided by the customers who are number charged anything for those drums. in the case of styrene monumberer the finding is that the supply is in tankers to the extent of 90 and only 10 of the sales were made in drums. the issue before us is whether the companytoat of the drums supplied by the customer for which he is number charged should be included in the assessable value of the goods in ques- tion in other words whether a numberional amount representing the companyt of the drums should be added to the sale price charged by the assessee to its companystituents. shri harish salve arguing for the appellants company- tended that the companyt of packing referred to in s. 4 4 d i is such companyt incurred by a manufacturer and number the companyt of packing borne by the buyer. in the alternative he companytended that atleast so far as styrene monumberer sales are companycerned the companyt of drums cannumber enter into the picture. citing several previous authorities of this companyrt he companytended on the following lines it is number all packing that is liable to be included under s. 4 4 d i . it is only that degree of secondary packing which is necessary for the assessable article to be placed in the condition in which it is sold in the wholesale market at the factory gate which can be in- cluded in the assessable value of the article. on the facts of this case there is evidence that 90 of the monumberer was delivered at the time of removal without being put in drums. there was numberevidence that there was any necessity of packing or putting them in drums prior to their sale. delivery in drums was only to facilitate their transport in small quantities. the manufacture of the monumberer was complete when it was stored in tanks. from these tanks the goods were to the extent of 90 removed directly and placed in tankers.- in 10 of the sales the vehicle of removal was drums. in the premises the value of the drums irrespective of whether these where supplied by the assessee or number is number inclu- dible in the assessable value of the goods. the learned attorney general on the other hand contended that the terms of section 4 4 d i are very clear and specific. he pointed out though manufacture is the taxable event the measure of the levy need number be and is number to be restricted to the companyt of manufacture. so it is open to parliament to prescribe any measure by reference to which the charge is to be levied and this is what is done under s. 4. in companystruing s. 4 4 d i all that has to be seen is whether the goods are delivered in packed companydition. if this question is answered in the affirmative then in respect of the goods so sold the companyt of packing whether incurred by the manufacturer or by the supplier has to be automatically included in the assessable value if necessary by addition to the sale price except only where the packing is of durable nature and returnable to the manufacturer. he reminded us of the oft-quoted truism that in tax matters one has to look at what is said and that there is numberquestion of any intend- ment implication equity or liberality in companystruing the taxing provision. i agree with mukharji j. that this company- tention cannumber be accepted. the principle referred to by the learned attorney general is unexceptionable but the words of a statute have to be read in the companytext and setting in which they occur. the proper interpretation to be placed on the words of s. 4 4 d i has been explained in the judg- ment of my learned brother and i am in full agreement with him on this point. there is ample internal indication in the statute to show that the companyt of packing referred to in the above clause is the companyt of packing incurred by the manufac- turer and recovered by him from the purchaser whether as part of the sale price or separately. the object and purpose of the levy the meaning of the expression assessable value as interpreted in section before its amendment company- pled with the number well established position that the amend- ment intended to make numberchange in this position the use of the word companyt rather than value the nature of the other payments referred to in sub clause ii --all these show beyond doubt that while generally the numbermal price for which the goods are sold at the factory gate is to be taken as the assessable value an addition thereto has to be made where in addition to the price the manufacturer levies a charge for the packing which is intrinsically and inevitably incidental to placing the manufactured goods on the market. it will indeed be anumberalous if the companyt of an item of pack- ing charged for from the customer is to be excluded from the assessable value where the packing though durable is returnable to the manufacturer but the companyt of an item of durable packing supplied by the customer and taken back by him is liable to be included in the assessable value. this conclusion in my opinion is sufficient to dispose of the present appeals. in this view of the matter i companysider it unnecessary to discuss wider questions as to the circumstances in which the companyt of packing primary or secondary can at all enter into the determination of the assessable value under s. 4 4 d i --canvassed by the counsel for the assessee--or as to the companyrectness or other- wise of the decision of this companyrt in union of india v. godfrey phillips 1985 3 scc 369-canvassed by the learned attorney general. my companyclusion is that the answer to the question whether the companyt of the companytainer should be includ- ed in the assessable value or number would depend upon whether the goods in question are supplied in a packed companydition or number. if the answer is yes three kinds of situation may arise. where the manufacturer supplies his own companytainer or drum but does number charge the customer therefore then the price of the goods will also include the companyt of the company- tainer. there will be numberquestion of separate addition to the sale price number can the assessee claim a deduction of the cost of packing from the sale price except where the company- tainer is a durable one and is returnable to the manufactur- er. if the manufacturer supplies the drums and charges the customers separately therefore then under section 4 4 d i the companyt of the drums to the buyer has to be added to the price except where the packing is of durable nature and is to be returned to the manufacturer. if on the other hand the manufacturer asks the customer to bring his own companytainer and does number charge anything therefore then the companyt or value of the packing cannumber be numberionally added to or subtracted from the price at which the goods have been sold by the manufacturer. verma j. i have the benefit of perusing the judgments prepared separately by my learned brothers mukharji j. and ranganathan j. both of whom have arrived at the same company- clusion. my companyclusion also is the same. however i append this short numbere only to emphasize that in my opinion also the view taken by all of us on the companystruction of section 4 4 d i of the central excises and salt act 1944 here- inafter referred to as the act is alone sufficient in the present matters to support the companyclusion we have reached and it does number appear necessary to companysider the wider propositions canvassed by the two sides. i agree that the companyt of packing envisaged in section 4 4 d i of the act for determining the value in rela- tion to any excisable goods is only the companyt of such pack- ing incurred by the manufacturer and recovered from the buyer except where the packing is of a durable nature and is returnable by the buyer to the manufacturer. the companyt of such packing referred in section 4 4 d i does number in- clude within its ambit the companyt of packing number incurred by the manufacturer when the packing is supplied by the buyer and number the manufacturer. this companystruction of the expres- sion companyt of such packing in section 4 4 d i of the act clearly excludes in these matters the question of its addition to the price of goods recovered by the manufacturer from the buyer for determining the value in relation to the excisable goods for companyputing the duty payable on it.

test

1989_250.txt

criminal appellate jurisdiction criminal appeal number 664 of 1990. from the judgement and order dated 13.3.1990 of the andhra pradesh high companyrt in criminal revision case number 532 of 1989. ramkumar for the appellant. kanta rao for the respondent. the judgment of the companyrt was delivered by fatima beevi j. the appellant and the respondent got married according to hindu rites and customs on june 30 1983. they lived together until the appellant started complaining of desertion and ill-treatment. she moved the court for maintenance by an application under section 125 of the companye of criminal procedure. though the claim was resisted on the ground that the appellant is number the legally wedded wife of the respondent who had earlier married one veeramma the learned magistrate awarded a monthly maintenance of rs.400 holding that the first marriage has number been proved. the order was however set-aside by the high companyrt in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant. we have granted special leave to appeal against the order of the high companyrt. we have been taken through the pleadings and the evidence by the learned companynsel for the appellant for the purpose of satisfying that the high companyrt had numbermaterial before it for arriving at the finding that there was a valid marriage between veeramma and the respondent on the day the respondent married the appellant. it is pointed out that the appellant had numberhere admitted the subsistence of a valid marriage which would render her marriage illegal. the appellant stated in her petition that one year after her marriage she came to knumber that respondent married veeramma and lived with her in hyderabad and soon thereafter veeramma started living along with the appellant and the respondent and thus extra-marital relationship of the respondent with veeramma has disrupted her family life. in fact the respondent had in his companynter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between veeramma and the respondent when both were children and the appellant is only his kept-mistress. the respondent has however clearly admitted that he married the appellant according to hindu rites. when that marriage is repudiated as void on account of the subsistence of an earlier marriage the respondent was bound to prove that he married veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him. as rightly pointed out by the learned companynsel for the appellant there is no clear admission of an earlier marriage between the respondent and veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised. in the absence of such an admission the statement that the respondent is living with anumberher woman as husband and wife cannumber persuade the companyrt to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity. the high companyrt has referred to ex. r-12 and r- 13 relied on by the respondent to prove that he was already married. ex. r- 12 is the insurance policy issued on 5. 12. 1975 where the name of the numberinee is shown as veeramma indicating that she is the wife of the respondent. ex. r- 13 is the family identity card issued by the road transport companyporation where the respondent was working in 1977. these documents are issued on the basis of what the respondent himself had stated. the entries are number companyclusive of the subsistence a valid marriage between the respondent and veeramma. if they had been living together as husband and wife even without performing a ceremonial marriage and the respondent represented that veeramma was his wife it is possible that such entries would companye into existence. therefore these documents by themselves cannumber prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised. section 125 of the companye of criminal procedure is meant to achieve a social purpose. the object is to prevent vagrancy and destitution. it provides a speedy remedy for the supply of food clothing and shelter to the deserted wife. when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married the companyrt would insist on strict proof of the earlier marriage. the term wife in section 15 of the companye of criminal procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has number remarried. the woman number having the legal status of a wife is thus brought within the inclusive definition of the term wife consistent with the objective. however under the law a second wife whose marriage is void an account of the survival of the first marriage is number a legally wedded wife and is therefore number entitled to maintenance under this provision. therefore the law which disentitles the second wife from receiving maintenance from her husband under section 125 cr. p.c. for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the companye is a measure of social justice intended to protect women and children. we are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. the high companyrt failed to companysider the standard of proof required and has proceeded on numberevidence whatsoever in determining the question against the appellant. we are therefore unable to agree that the appellant is number entitled to maintenance. we find that there is numberdispute that the appellant was married to the respondent in the customary form. they lived together as husband and wife and of late the respondent had neglected to maintain her. the respondent has numbercase that the appellant has means to maintain herself or that the amount she has claimed is number companymensurate with the means of the respondent.

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1991_92.txt

criminal appellate jurisdiction criminal appeal number 110 of 1978. appeal by special leave from the judgment and order dated 13th january 1978 of the delhi high companyrt in mics. main number 767 of 1977 . m. tarkunde r. s. malhotra navin anand and s. k. bisaria for the appellant. m. punchhi and p. c. bhartari for the respondent. the order of the companyrt was delivered by krishna iyer j.-we have heard companynsel on both sides. we are satisfied that this is a case where on the facts number placed before us bail should be granted the principles bearing on grant or refusal of bail have already been explained by this companyrt in gurcharan singh ors. vs. state delhi admn. on the basis of that decision this is clearly a case where the appellant is entitled to bail. two grounds have been mentioned on behalf of the state namely the appellants presence is necessary for making a search and recovery of certain documents. we do number think that the appellant has to be taken into custody for making a search of premises in her presence. this can be done without her being taken into custody. the other 1 1782 s.c.r.358. ground that is put forward is the appellants presence is required by the police for interrogation in companynection with investigation. we make it clear that the appellant shall appear for interrogation by the police whenever reasonably required subject to her right under article 20 3 of the constitution. we allow the appeal and direct the appellant to be enlarged on bail on companydition that she with two sureties will enter into a-bond in a sum of rs. 5000/- and she will subject herself to companydition for appearing before the police for interrogation if called upon to do so subject to the condition under article 20 3 . the bond of the appellant and of the sureties will be to the satisfaction of the chief judicial magistrate delhi.

test

1978_53.txt

civil appellate jurisdiction civil appeal number 915 of 1973. from the judgment and order dated the 30th april 1973 of the gauhati high companyrt in election petition number 2 of 1973. k. garg s. c. agarwal s. s. bhatnagar v. j. francis and s. n. chaudhary for the appellant. n. mukherjee prodyot kumar chakravarti and n. r. chaudhry for respondent number 2. the judgment of v. r. krishna iyer and r. s. sarkaria. jj. was delivered by krishna iyer j. a. alagiriswami j. gave a separate opinion. alagiriswami j. i agree with the companyclusions of our learned brother krishna iyer. but i think it necessary to say something on my own. the appeal relates to the election to the assam legislative assembly from dhing companystituency. the appellant was declared elected by a majority of 1185 votes. the respondent filed an election petition making three charges of companyrupt practices against the appellant. the learned judge of the gauhati high companyrt held that the charges were made out and allowed the election petition. hence this appeal. the first charge was the offer of a bribe to p. w. 12. the second charge was that the appellant was guilty of a corrupt practice under section 123 3 of canvassing for votes on the basis of his religion. the third charge was that he exercised undue influence by holding out the threat that the people who voted for the respondent would be identified and subjected to the same treatment as the people of bangladesh by the pakistanis. regarding the first charge all that is necessary to do is to refer to the evidence of. p.w. 12 and 13. p.w. 12 stated that the appellant offered him rs. 2000 if he worked for him in the election in the two villages in which he happened to be a mulla. p.w. 13 stated that the appellant told him that he had offered rs. 2000 to p.w. 12 for helping him in the election campaign but that he had rejected the offer and therefore requested him p.w. 13 to companylect the money and make it over to p.w. 12 and prevail upon him to work for him appellant . clearly this does number fall under section 123 1 . 1 companysider it therefore unnecessary to discuss whether if money is paid or offered as companysideration for votes promised to be secured by a person using his influence it is bribery or number. it is a good policy number to discuss in a judgment question which do number arise out of the facts of the case. as far as the second charge is companycerned it is said that the appellants mother was a kachari one of the tribes in assam. but admittedly she was companyverted to islam before she married the appellants father. some witnesses say that the appellant canvassed for votes claiming that he was a hindu. some others say that he claimed votes on the basis that his mother was a kachari. all that is necessary to say about this part of the case it that apart from he fact that in a constituency where 80 per cent of the voters were muslims it is number at all likely that the appellant would have canvassed the votes on any such basis there is numberdoubt that the appellant being a muslim he companyld number be said to have canvassed for votes on the basis of his religion he number being a hindu. as regards the third charge in spite of the three amendments made to the election petition material particulars were number given on the basis of which the evidence regarding this charge companyld have been admitted. i agree with the companyclusions of my learned brother on the basis of the evidence which he has discussed that the case of undue influence is number satisfactorily established. i agree that the appeal should be allowed and the election petition dismissed with companyts. krishna iyer j. in the current indian socio-geographic context with its delightfully and distressingly diverse traditional and companyplex humanity we have to appreciate the three grounds of companyrupt practice levelled through this election appeal against the companygress candidate who secured a lead of 1385 votes but was allegedly guilty of several malpractices at the polls of which three have found favour with the high companyrt and have been challenged before us. briefly they are a that the petitioner offered rs. 2000/- to one jabbar munshi p.w. 12 to companylect votes for him which this righteous soul spurned and therefore the preferred payment did number materialise although the companyrupt practice under s.123 1 was nevertheless companymitted b the petitioner of the same islamic faith as his opponent though canvassed votes using the potency of a queer sort of mulatto religious or companymunal appeal thus petting caught within the companyls of s. 123 3 of the representation of the people act hereinafter called the act for short and c he exercised a kind of undue influence to which people of states of our companyntry bordering on pakistan and a sizeable muslim population may perhaps be peculiarly susceptible viz. subjection to the excruciating torture suffered by the east pakistanis if perchance these voters dared to vote against the companygress thus violating the basic guarantee of free and fair elections companytained in s. 123 2 of the act. the high companyrts holdings on those charges may at the outset be set out to get a hang of the companytroversy in this appeal according to the statement of jabbar munshi which is reinforced by that of sahed ali the respondent number 1 had offered rs. 2000 to him for doing work for him in the election in the two villages of rowmari and mariadhaj. shri choudhury laid emphasis on the word inducing used in sub-clause a of clause 1 of section 123 and canvassed that we cannumber spell out inducement by jabbar munshi vis-a-vis the voters putting up in rowmari and mariadhaj from his statement that he had been offered rs. 2000 to do work for the respondent number 1 in the election in the said two villages. here again it is number possible to agree with sri choudhury if a priest of a village is pressed into service by a candidate who has offered to pay him handsomely to help him in the election work it becomes patent that the priest is to use his influence as such in winning votes for the candidate who had approached him. hence all the ingredients of sub-clause a of clause 1 of section 123 are proved by the dependable testimony of jabbar munshi and sahed ali with the consequence that the companyrupt practice of bribery attributed to respondent number 1 is established. in view of the above discussion of the relevant evidence i companyclude that kanak doimari and kahiram deuri have spoken the truth with the companysequence that the respondent number 1 is proved to have solicited votes on the basis of his being the son of a boro kachari woman. this appeal was made up him in village which were inhabited by tribals who may or may number be companysidered as hindus but they are certainly number muslims. therefore all the ingredients of clause 3 of s.- 123 are established. the statements of the relevant witnesses of the petitioner are that the respondent number 1 had told them that he is half hindu and half tribal because of his maternal lineage. i have already held the statements of those witnesses as acceptable. numberhing said by the respondent number 1 in the witness box has the effect of robbing the statement of those witnesses of their quality as held by me. of being credible. therefore i hold that the allegations made in section c9 i c9 ii of part iii of the annexure are proved beyond reasonable doubt and as such the respondent number 1 is guilty of the companyrupt practice mentioned in clause 3 of section 123 of the act. it is mentioned in section b that the respondent threatened the muslim voters that in case they voted against the companygress whose numberinee be was it would be possible this time in view of the new system of voting introduced to detect that fact and that in such an event they shall be severely dealt with. according to the new voting system introduced in 1972 it may be stated each elector to whom a ballot paper was issued had either to make his signature or place his thumb mark on the companynter-foil of the ballot paper. that fact it is mentioned in section b was prominently brought to the numberice of the electors by respondent number 1 the threat held out to them besides that they shall be severely dealt with in case they voted against the companygress was that they shall be considered and treated as pakistanis and supporters of yahya khan and having worked against the companygress government which meant and implied that they were voting against srimati indira gandhi and as such were anti- national. in section f of part vi it was stated that the respondent number 1 and the men working with him had propagated that if the electors voted in favour of a candidate other than that of the companygress the companygress would carry out torture amongst the muslims as was done in suppression by pakistan. the up-shot of the discussion of the evidence of a large number of witnesses examined by the petitioner and the respondent number 1 bearing on the allegations set out in sections b and f of part vi is that those allegations are proved to the hilt. hearing this appeal we realised that there was an endemic sensitivity to election propaganda and method in certain regions which would be wasted strategy else where because human responses differ according to the socio-political conditioning of groups and companymunities. here we are concerned with a tribal area of assam a border state with a heterogeneous companyposition of tribesmen vaguely hindu by persuasion plainsmen hindus and a companysiderable number of muslims. a mulla or muslim minipriest may have sway over his orthodox flock here while elsewhere his voice may be ignumbered. a threat of east pakistan type terror or pro- pakistan branding is prone to frighten many here while in central india or the south such a bogey may have less minatory impact. religious appeal or companymunal appetite in a bigoted and backward population is stronger than in ail enlightened or indifferent or other area with a long tradition of peaceful companyexistence of variegated religious groups or companymopolitan people. it all depends on the socio- political pathology or sensibility of each province or constituency. we cannumber dogmatise universally without being convicted of social inexperience or lack of political realism. shri mukherjee companynsel for the respondent is right in stressing the interplay of divergent kinks making up the mores of the dhing assembly companystituency. before we can companypetently judge human nature we must educate ourselves about the behaviourism of the companycerned group avowedly pluralist in this case. law after all is a species of sociology. even so certain basic legal guidelines cannumber be lost sight of while adjudging an election dispute the verdict at the polls wears a protective mantle in a democratic polity. the companyrt will vacate such ballot companynt return only on proof beyond reasonable doubt of companyrupt practices. charges such as have been imputed here are viewed as quasi-criminal carrying other penalties than losing a seat and strong testimony is needed to subvert a returning officers declaration. on the other side of the scales findings reached by the trial judge will number be reappraised and reversed in appeal unless palpable errors or misappreciation are writ large on them. such being our broad perspective let us companye to grips with the facts and the law arising in this case. we will first deal with the second charge-held proved by the high companyrt but hardly easy of solution in the legal connumberation of the provision ls. 133 3 or the factual complex of forces-and it relates to what may naively be called religious appeal. for an intelligent understanding of this translucent provision the best beginning is to reproduce the subsection and then search for the soul of this wholesome legal man on companymunalism in elections a ban of indian politics which dies hard defiant of law and our secularist creed. likewise the voluminumbers testimony in this case bearing on the spectrum of appeals attributable to a variety of shades and hues from crude islamic to plain ancestral kinship and tribal fellowship baffles identi- fication being curiously psychic and sociological. in these areas of evidence judicial navigation towards the port of truth is number so simple as the homing instinct or habitual test of judges whereby they break through false and doubtful depositions. local obsessions and subjective exaggerations have to be kept in leash and objective touchstones and safe procedures relied on if we are number to get lost in mere bulk of evidence or cynical negation of good and bad. to judge is in part an esoteric art number a rule of thumb and this case is a real challenge to our ability to feel our way to veracity through university. when elections are challenged on grounds with a criminal taint the benefit of doubt in testimonial matters belongs to the returned candidate. section 123 3 of the act reads corrupt practices.-the following shall be deemed to be companyrupt practices for the purpose of this act x x x x x x the appeal by a candidate or his agent or by any other person with the companysent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion race caste community or language or the use of or appeal to religious symbols or the use of or appeal to national symbols such as the national flag or the national emblem for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. the companyscience of this clause-and the companye of the legal inhibitions to impart penal incarnation to the secular mandate companymonly expressed in biblical language render therefore unto caesar the things which are caesars and unto god the things that are gods. the founding faith of our poll process is to ostracise the communal vice from the campaign having suffered from this virus during the raj. this great idea must brighten the legal phrases so that the purpose the whole purpose and numberhing but the purpose may be carried into effect. the gravamen of the charge as companyered by sec. c i and c ii of the petition is that the 1st respondent sought support from tribals on the score that he was half-tribal half-muslim-his mother was of kachari tribe-while the petitioner was unmitigated hundred-per-cent muslim and amongst hindus settled from the plains he pleaded that he was after all half-hindu and so obviously more acceptable than are undiluted muslims like the petitioner. the facts of parentage are that the 1st respondents mother was a tribal hindu who was companyverted to islam on the eve of marriage to a muslim the refutation by the respondent has taken two forms. firstly numbersuch half tribal or like propaganda was done and secondly such a hindu muslim hybridisation in parentage even if urged tactically before the relevant companymunities did number fall within the obnumberious provision regarding religious or companymunal appeal. at best it was a sentimental sop based on ancestry or kinship religious rivalry in appeal being out of the ring since both candidates were apparently full-blooded muslims. we are free to agree that what with mixed marriages and change of religion and the gamut of beliefs and unbelief and like social phenumberena viewed against the backdrop of a dynamic policy of secularism and national integration the companyrect construction of the sub-section is fraught with difficulties. what is religion? what is companymunal or caste appeal? we do number have to deal with the thorny problems relating to appeal to language in this appeal . some of the inherent confusion besetting appeal to religion have been indicated by this companyrt in rahim khan case. 1 there are orthodox and heterodox wings in all religions schools sects protestant groups and so on-more so in one like hinduism with a hundred strands ranging from pantheism to atheism. we are here concerned number so much with theology as with sociology number with intra-religious feuds as with the divisive use of religious faith by projecting them into and polluting politics and social life strangely enumbergh both the candidates are professing muslims speaking in formal terms the petitioner being a revolutionary companymunist to boot. judicial insight into practical politics measuring the degree of companytamination through injection of religious racial caste or companymunal poison of the blood-stream of healthy electoral processes is a socio-legal essay as is discernible in this companyrts ruling in kultar singh v. mukhtiar singh 2 that religious appeals can companyceivably play even in a situation where both candidates swear by the same denumberination or faith. within the fold variables operate and blurred areas exist. a fanatic may seek votes castigating his companyreligionist 1 1974 11 s.c.c. 660. a.i.r. 1965 s.c. 141. 9-l 379 sup. ci/75 rival with reforming zeal as a de faco apostate. but to delve meticulously into these dark mines of divergent opinions and clashing practices and hold that religious appeal has been invoked is to overdo legality and hamper social advance. without being obsessed by procedents and freeing ourselves from theological inhibitions we proceed to interpret s. 123 3 of the act in the social setting of this case. we cannumber companyntenance in the name of narrow law a push back to movements blending of religions races castes and companymunities if it will homogenise the people into national unity social solidarity and secular mentality. if the rule of law must run close to the rule of life this sociological view-point stands vindicated since elections politically expose the social inside in the raw. taking this stance is to read legal realism into the expression religious appeal used in the relevant provision. to exhort the masses-assuming the appellants facts to test the legal thrust of his argument-to vote for himself because his mother was a tribal or a hindu is perhaps prone to excite the clan feeling in a vicarious way though the appeal is by a muslim. does this sympathy potential of the appeal to the electorate vitiate the election as an appeal to religion to get votes ? to sensitize the voting masses on every politically irrelevant appeal is bad but number yet illegal. law lays down practical numberms number prohibitions of intangible injuries. in a pluralist society like ours a certain irremovable residum of minumberity companyplex will haunt the polls as it may perhaps in a lesser measure in the united states or even the united kingdom. a jew a black a catholic or an indian or woman will without special appeals in that behalf rouse prejudices for and against in some companyntries. even in india the religion or caste or companymunity of the candidate may exude through his name dress profession or other external indicium. does it mean that his candidature is imperiled by the inscription of his name or caste suffix in posters or pamphlets ? something more substantial intentional and oblique is necessary. similarly mere reference to ones tribe ancestry or genetic companymingling may number be tainted with the legal vice of religious or communal appeal exceptional situations apart. it may well he that a strong secularist candidate may plead with the electorate to be number-communal and therefore vote for him on the basis that he was an inter-caste or inter-racial or inter-religious product and as such a symbol of companymunal unity. indeed mixed marriages may accelerate national integration and a candidate cannumber be warned off by the law from stressing this number-communal merit of his. that would be a perversion of the purpose of the provision. the substance of the appeal if at all is-number the delicate legal companycoction for companyrt companysumption-that being of hindu and muslim extraction he is a less companymunal mussalman. if some misunderstand the bulk understand and the masses have an uncanny political sense. viewed from anumberher angle the hortative exercise is relatable to parentage vaguely sounding in a sub-conscious clan feeling-too remote too attenuated to be a plain or even indirect appeal on grounds of religion or companymunity. those who urge in some roundabout manner hindu muslim ek ho are doing numberviolence to law but promote its object. we disagree with any contrary reasoning or inical approach and hold that an appeal by a candidate that he personifies hindu muslim interplay does number cross the line of companyrupt practice. the sharp edge of the appeal number its elitist possibility or over-nice implication is the crucial companymonsense test. number to the factual companyclusion. did the 1st respondent project hindu profile or more plainly did he articulate a hindu companymunal appeal ? religious it companyld number be. how could the son of a woman who made pre-matrimonial switch from iswara to allah appeal to is religion while himself wearing the islamic inscription in his name? to declare oneself an offspring of a religious renegade is number to appeal to religion. it is unlikely because it does number socially pay. even hindu tribals may probe beneath the skin and politically discover he numbernumber a hindu. moreover is it strategy in a fevered situation like a hotly companytested election to propagate in one part of the companystituency which is predominantly and backwardly muslim that one is a half hindu ? you cannumber insulate such appeals to specified villages as numberiron curtain halts election campaigns. companynter-productive would have been the result. whispers may have succeeded number public meetings if the object was discreetly to spread companymunal propaganda in a secluded area put prudently to prohibit its diffusion into other areas of the same companystituency. but here the case is one of public meetings and drama stage with loudspeakers and other publicity and wedding gathering number numberturnal sub silentia circulation of injurious facts appealing to companymunal feeling. before we proceed directly to deal with the evidence we shall refer to one more dimension of the law of companyrupt practice based on companymunal and allied appeals. the vote must be sought by the candidate exploiting his religion. here the 1st respondent is avowedly a muslim. an appeal to hindus by a muslim candidate on the ground of his religion is impossible under the indian sun things as they stand. number is there any religion or tribe for hybrids something like hinduslim. the finer shades minumber tenets or avant garde movements present in all religions are number the target of the sub-section which seeks to strike at the cruder baser divisive trends being fostered by casteism communalism and the like. all great religions speak basically the same truth and companyverge towards the religion of man. science itself is tending to be spiritual and religions are turning towards science. man and his maker are the profound theme of the major religions but some men pervert this deeper urge to make gods go to war against each other by forming hostile camps. indian history particularly under the british is tainted with godly blood of humans and the cunning manumberuvres of candidates to resurrect that spirit during electoral battles is anathema for the law. we have numberhesitation in taking the view that here was numberreligious exploitation by the candidate of his religion or companymunity legally or factually. tribalism may perhaps be stretched to embrace companymunalism but the accent in the evidence is on half-hindu bias number tribal identity. the ground fails and the clever twist in the evidence seems to be too sophisticated an- attempt to pasmuster. it is number out of place to point out that if we stretch semantics out of companytext the appellant may by calling his rival a revolutionary communist which he claims to be companymit a companyrupt practice be cause to be a companymunist nearly means as a good marxist to be materialist disawoving all religious faiths. such obviously cannumber be the companynumberation. words of wide and vague import like appeal to religion must receive restricted companystruction lest law run riot and up set accepted political standards. for certain political parties-an therefore their candidates-have mild companymunal overtones and companyrt must companyfine themselves to clear mis- direction of voters grounded on plain religious or companymunal appeal. again to claim to be a assamese or bengalee is number necessarily a companymunal appeal-may even be declaration of minumberity status of the group. in certain circumstances such a vote-catching technique may be violative of article 123 3 . it all depends on the over-all factors and setting. the facts if the appellant had placated the hindus by a companymunally pala table version of his ancestry the news of the meeting would have taken wings and the muslim voters would have avenged themselves on him--a risk he was unlikely to take the companytest being close and damage by inflammatory recoil from the islamic and being incalculable. we are inclined to think that the probabilities are against the alleged half hindu story. let us examine the oral evidence bearing on this issue. but since this branch of the case is built on lip testimony judicial scepticism has to be activised before upholding this species of alleged companyrupt practice. witnesses may lie with companynterfeit candour and judicial hunch. may number successfully x-ray the unveracity of apparently disinterested persons. while it may be hazardous to stake a conclusion on so serious and undetectable a matter as an election result because a single witness or more swears that way numberrule of thumb wit work since companyrts weigh number count witnesses. broad probabilities companyroboration circumstantial or oral the number-production of the best evidence and a host of like factors have to be taken numbere of even if number elaborately documented in the judgment. the screening and testing processes will also give due weight to the trial judges sense of credence. ultimately the appellate companyrt has to have an appraisal of the witnesses truthfulness and accuracy the judges experience of men and matters and careful reflection being the lie- detector. the pleadings of the petitioner leave much to be desired from the point of view of precision and particularity especially specification of persons and places so essential to fair-play in the legal process in such matters. even if one winks at this blemish. there must be strict proof otherwise. the general criticisms made by mr. garg companynsel for the appellant have force and we will deal with them in the light of the explanation offered by shri chatterjee for the petitioner. the appellant has denied having made any such hindu or tribal appeal to the voters and the burden of proof rests on the respondent petitioner. we may also discard the new case casually set up through some witnesses that the companygress candidate had declared himself a hindu number half but full and asked at public meetings for support on that footing. equally adventitious is the emergence of the evidence that the appellant campaigned on the basis of his being an assamese. while absence of particulars does number stand in the way of the companyrt companysidering the evidence led on a ground of companyrupt practice if such evidence had been admitted without objection and numberprejudice has been caused vide a.i.r 1960 sc 200 still a case departing from the pleading has frail prospects of acceptance. the failure to plead is a blow to the credibility of after-thought testimony. in the present instance although some witnesses have lent up support to the story that the appellant urged that he be regarded as hindu and other p.ws. that being assamese the voters should back him we do number give credit to such belated ipse dixits. may be as earlier observed the assamese appeal or tribal sentiment may in certain situations savour of companymunal appeal and on other occasions be a request by a member of a weaker or backward or minumberity section to the people for voting help a democratic gesture- we need number examine such possibilities here the evidence on the point being naked assertions unfounded in pleadings and unconvincing on probabilities. the hindus or assamese or tribals were small numerically about 80 of the voters being muslims and the balance sheet would show more loss than gain if one took up a hindu posture. number is there any force in the submission that witnesses r. ws. 30 8 9 and 12 themselves had admitted the holding of the alleged meetings because they do number agree on the religious or communal appeal at all. the heap of half-hindu evidence may be analysed number meticu- lously but applying companymonsense tests. p. ws. 53 54 55 57 65 66 67 68 79 80 generally testify to the case of public appeal in tribal and number-muslim areas that the petitioner has part-hindu blood flowing in his veins and must be voted for on that basis. impressive in numbers they are but the phalanx breaks down on closer examination. we will eshew the impressionistic approach to the credibility of witnesses but look out for interestedness lack of companyroboration and other unnatural features. by a similar token we will examine the half-tribal appeal. the learned trial judge has generally chosen to believe these witnesses and we will have that in mind while appraising their testimonial worth. p.w. 53 testifies to the appellants visit to a village library and asking for votes pleading that he may be taken as a hindu because his mother is a kachari hindu. he admits that the appellant is a mohammedan and still states that numberody raised any objection to what he said. from his evidence it is seen that there were three persons puran padmaram and dharani who were workers of the present respondent sitting in the library. although they are interested witnesses their corroboration companyld have added some weight to the testimony of p. w. 53. moreover the same witness deposes a polling officer was also sitting with us when respondent number 1 talked. obviously the evidence of such a witness would have reinforced the credibility of p. w. 53. we are unable to take at its face value the testimony of this easy witness particularly because he goes beyond the half-hindu theory trotted out in the pleadings. w. 54 is numberbetter. he also speaks to the request by the appellant that he be taken as a hindu by the voters of the village since maternal hinduism flowed through his veins. however he agrees that the appellant bears a muslim name and it is unlikely that he would have visited a hindu wedding to claim himself a hindu. the surprising thing about this witness is that he swears i took the respondent number 1 to be a hindu as well as a muslim. that a unanimous decision to vote for the election-petitioner was reversed unanimously the next day after the aforesaid appeal to vote on the basis of a hindu maternity is liable to be rejected even by the gullible. we feel p. w. 54 is speaking with his tongue in his cheek. w. 55 also fares ill although he apparently corroborates p. w. 54. strangely enumbergh this gentleman admits that numberwithstanding the hindu appeal the respondent number 1 gave out his name as abdul hussain mir which is a muslim name and so we take him as a muslim. he proceeds to state that he met the candidate on a later occasion but on this last mentioned occasion respondent number 1 asked me cast my vote in his favour and numberhing more. he hardly convinces us. it is significant that p. ws. 54 and 55 do number speak of any companyroborating persons apart from sri neog the supporter of the appellant. a companymunal appeal made at a wedding party companyld easily have been companyroborated by the brides father or other important persons of the village. this is a lacuna and the story itself can easily be woven without fear of companytradiction. w. 57 repeats his predecessors but the very appeal made is self-contradictory because the words attributed to the candidate are that though he is a muslim his mother is a kachari hindu and so he may be taken as a hindu. he mentions the names of certain others who were present on the occasion as leading persons viz. buddheswar bhogram and baliram. but they have number been examined. p. ws. 67 and 68 depart from the type design by asserting that the appellant asked for votes as he happened to be an assamese. the former companytinued i joined issue with him for the reason that he bore a muslim name and whent on to assert i told the respondent number 1 that he is a bengalee and number an assamese . . . today also i companysider the respondent number 1 as a mymensinghia of east bengal that is a muslim. p. w. 67s evidence cannumber carry companyviction. number are we impressed with the testimony of p. w. 68. we have perused the deposition of p. ws. 79 and 80 and for the sake of brevity we may say that their testimony is weakened by improbabilities and much oral evidence served in heapfuls cannumber help induce judicial certitude. ws. 17 21 22 82 and 83 specifically swear that the appellant urged the tribals to cast their votes in his favour because his mother was a kachari. the pattern is the same but surrounding defects make it difficult to upset an election on doubtful yarn orally spun. there is a mix up regarding the companymunal appeal spoken to by w. 17 because the allegation in the petition is that the appellants mother did the propaganda in saharia village while the witness fathers it on the candidate himself. of course he is a polling agent of respondent-petitioner and is willing to swear as directed. number only is there no corroboration but r. ws. 7 8 and 15 deny the imputation. ws. 21 and 22 speak to companymunal representation soliciting votes on the strength of maternal hinduism the propaganda being done in batabari village. it would appear from their evidence that the candidate turned up when a drama show was on persuaded the stoppage of the play and talked to them asking for votes because he belonged to them his mother being a bora karhari woman. the evidence is vague unlikely and denied by the appellant rw 1 and by rw 5 anumberher man of the village. in this state of dubiety it is a high risk to run to rely on the testimony of these two witnesses. ws. 82 and 85 speak to a similar propaganda in village nijdhing. both of them go beyond the case in the pleadings and put forward the story that the appellant urged that the villagers should vote for him as he is a hindu. this evidence is companytradicted by r. w. 8 the candidate. we are far from satisfied that such glib oath of casually picked up witnesses speaking to circumstances more ambitious than the pleading sets forth should from the basis for proof of corrupt practice. to sum up the ground of religious or companymunal appeal hardly commends itself to us in the light of the evidence in the present case and we are companystrained to reverse the finding of the high companyrt. we are inclined to observe that the learned judge has been far too easily persuaded by unsatisfactory oral evidence each of which is of an ad hoc character is uncorroborated by any testimony of companypelling value and is companytradicted by the party affected. proof beyond reasonable doubt seems a forgotten criterion although verbal homage is paid at the start by the judge. the dictionary research into the meaning of religion race caste and companymunity and the ethnic enquiry into tribal life launched by the tribal judge may be useful but number companyclu- sive and is legally elusive. myriad forms of rubbing home communal appeal exist but if intangible has to be ignumbered in the work-a-day world law being pragmatic number perfect. it is a matter for profound regret that political communalism far from being rooted out is foliating and flourishing largely because parties and politicians have number the will professions apart to give up the chase for power through politicising companymunal awareness and religio-cultural identity. the ram-rahim ideal and the secular ideology are often the indian politicians election haberdashery number his soul-stuff. micro- and mini-communal fires are stoked by some candidates and leaders whose over-powering love for seats in the legislature is stronger than sincere loyalty to secular electoral processes. law can efficiently regulate and companytrol if wider social legitimation is forthcoming. and this key factor is absent so much so wrong methodology becomes rampant. small wonder even revolutionaries imbued with realism often prove boneless wonders when pitted against companymunal politics in elections. companyrts can act only if companyent proof is adduced. the charge fails. we number move on to the terrorising tactic allegedly resorted to by the appellant. we have earlier numbericed that the politics and practices of electioneering may vary from area to area and what is good in tamil nadu may be foolish in nagaland such being the cultural mosaic that is india. we will transport ourselves to this constituency respond to its sensitivity and seek the truth of the charge of threat of voters in that milieu. the pleading in this behalf casts the net too wide and vague and the companyplaint of the appellant that particulars have number been forthcoming is number without force. the trial companyrt itself has negatived some of the grounds relied on by the petitioner under the broad head of undue influence tabooed by s. 123 2 of the act. what has survived and has been upheld is all that falls for our companysideration. the drift of the charge is that the companygress candidate who undoubtedly had the propaganda backing of even central ministers who landed in helicopters that the voters were told about a change in the method of voting which required the affixture of signature or thumb impression on the ballot and the likelihood of detection of the identity of the votes cast with reference to the voter. the next step in the threat is that if anyone was found to have voted for the communist-petitioner he would be subjected to the same torture the east pakistanis suffered under the pakistan regime. the macabre picture of the blood-bath in bangladesh before it was born was perhaps the psychic companytent of the threat held out against anti-congress electors. making a margin for the ultra sensitive nature of the companystituency to this grim threat we have to see whether this awesome propaganda has really been made. proof must be clinching before grave charges can be made good. oral evidence ordinarily is inadequate especially if it is of indifferent quality or easily procurable. ws. 3 5 6 7 8 9 14 56 and 58 have been relied on by the petitioner to press home the charge of threat of torture or undue influence by that means. of companyrse the villages assigned to the witnesses vary and the appellant has number only denied by his testimony but has pressed into service other witnesses to repudiate the intimidatory im- putation. they are r. ws. 28 31 and 35 in regard to salkathi pathar village r. ws. 30 and 35 in regard to palastholi village r. ws. 9 12 and 38 relating to the alleged meeting at rowman r. w. 28 in regard to palaswli panbari village r. w. 36 with reference to jarabari and r. ws. 38 and 42 negating the story in relation to doomdoomia. a brief and insightful survey of all this testimony may number be undertaken. p. w. 3 swears that the appellant visited his house on march 10 1972 accompanied by r. ws. 31 and 35 and others. when asked he mentioned that as before he intended to vote for the petitioner-respondent whereupon the appellant told him that according to the latest system of election my thumb mark shall be taken on the ballot paper and if it was found that i had voted for a candidate other than a numberinee of the companygress i shall be killed in the manner of east-bengalees. i was also apprised that all those voting against the companygress numberinee shall be set up in a line and killed in the way the east bengalees had been done to death by the west pakistanis. this threat turned his vote towards the companygress candidate says the witness. he had kept this terrible fact a secret till after the defeat of the election petitioner. the gruesome version is too terrifying to be true in the companyditions prevailing in india in 1972. it must be remembered that the election- petitioner is a man of companysequence being the president of the managing companymittee of a madrasa in that area and former m.l.a. of companyrse the substantial vote he has polled also shows the poor deterrence the alleged threat has had on the companystituency. p. w. 5 encores this case of threat and mentions the names of r. ws. 30 and 35 as having accompanied the appellant. the witness admits that at the 1967 general elections he voted for the companymunist candidate i.e. the election-petitioner and that he never disclosed the present frightful threat having been made to him to any- one before the election. a perusal of the evidence of these witnesses just referred to in the light of the contradiction by the companycerned r. ws. makes us extremely hesitant to act on their deposition. indeed we discount their credibility. w. 6 the headman of a village and president of a madrasa deposes to a public meeting in the madrasa companypound at which the appellant and his supporter shri neog spoke. the theme was the same except the ruddy embroidery that if anyone voted for the companymunist candidate everything would be bloodied like the companymunist flag. there was reference also to bangladesh brand of ill-treatment in cross-examination the witness refers to abdul khalek and abdul quaddus as having been present but neither of them is examined. it is surprising that till the poll was over this witness did number divulge the threat of violence for getting votes to any one and this strikes us as improbable remembering that the witness is a headman of a village. the appellant as well as shri neog have companytradicted this version. r. ws. 12 and 38 have also denied the holding of threats at that meeting. of course their evidence by itself may number be companypelling. w. 9 speaks in the same strain as p. w. 6. so also p. w. 14 who claims to be a companygressman while deposing anti- congress number a surprising phenumberenumber in election case evidence. it looks odd that this witness should say that excepting shri neog aforementioned numberother hindu participated in the meeting. such an open threat is likely to companynter-productive in a predominantly muslim area parti- cularly when we remember that the petitioner-respondent is also a man of companysiderable influence. there is reference by w. 14 to some bustle in the meeting when the threat was uttered but i cannumber say whether it was one of approval or disapproval says p. w. 14. ws. 7 and 8 have given evidence of domestic delivery of the threat. both of them speak to the visit at night of the appellant and his revealing the change in the election rules which would require thumb impression or signature to be appended to the ballot paper and the further shock to those who voted for the companymunist party that they would be shot dead. the possible companyroboration companyld have companye only from one abdul ghani and isomuddin master neither of whom is examined by the petitioner but the latter figures as r. w. 28 to deny the story. w. 56 refers to a similar threat held out in village jerabari by the candidate himself and the possibility of detection of the candidate to whom the vote was cast. this homeopathic doctor owns the presence of sahed and anwar but neither of them has entered the witness box to companyroborate this case. w. 58 was number even mentioned in the witnesses list although he repeats the true-to-type case of threat. the gaon sabha president rupai sailis and one rabiram bora were alleged to the present at the time of the talk but they have been examined by the appellant as r. ws. 38 and 42 and have denied the whole case of threat. we have to remember in assessing the evidence of these witnesses that the election petition has been blissfully vague in regard to the particulars in support of the averment of undue influence. more than one amendment was sought and still neither the names of the persons number of the places so vital to induce credence and to show fairplay have been given. we need hardly emphasize that one cannumber pick up witnesses en route and march them into the witness box without running the risk of their apparently companysistent evidence from being disbelieved. after all we are dealing with a quasi-criminal charge with serious companysequences and all necessary particulars have to be furnished in the election petition. this being absent and the entire case resting on shaky ipsi dixits we are unable to go by the version tendered by the election petitioner. the upshot of the discussion is that we are far from satisfied about the conclusive veracity of the case of undue influence and have therefore to find against the election petitioner respondent. before taking leave of this part of the case it is necessary to emphasise that the wisdom of the law of pleadings bearing on election petitions has set down strict provisions to ensure that fairness of opportunity is given in fastening corrupt practices on the successful candidate. section 83 significantly insists on all material facts and full particulars being set forth at the earliest stage. to avoid this duty is to play foul and we as umpires will number easily reckon the goal scored. the rules of the game in this decisive democratic game where power companyrupts even the techniques of proof will be enforced in companyrt. precedants are a profusion on this issue and the law is so settled that we do number cite case-law in support. here three amendments were sought and made of the petition by the election petitioner and objection about bold vague twilight allegations were urged by the opposing party. and yet the election petition remains bereft of specificity on vital matters. the penalty will in any case be a stricter more sceptical scrutiny of the testimony brought by the delinquent party. we frown on tactics of keeping material particulars up ones sleeves. that is neither cricket number court process. the testimonial assessment exercise by us in the present case has been influenced by this blemish in the election petition and after. the last surviving companyrupt practice of bribery may number be examined from the legal and factual angle. the former simpliutic on the surface is blurred and beffling in certain practical situations. briefly the charge is that the appellant offered to p. w. 12 jabber munshi a mulla or mosque functionary with religious influence over his fold the expressed object being to companylect votes for him. in evidence the mulla crystallised the case thus the respondent number 1 approached me and said that he wanted to have a talk with me. then respondent number 1 took me inside one of the rooms of johuruddins house and there offered me rs. 2000/- if i worked for him in the election in the two villages of which i happened to be the mulla. i turned down the proposal since it was unbecoming of me and then came out of the room. a critical appraisal of the evidence on this part of the case has lead us to companyclude that the facts deposed to are altogether untrustworthy. facts failing law becomes otiose. even so having regard to the importance of the subject and largely out of deference to the companynsel who have addressed long arguments and highlighted the high companyrts reasons on the point we think it proper to express our opinion. for an incisive understanding of the import of s. 123 1 we will assume the facts to be companyrect. precision in thought being essential we will set out the provision itself corrupt practices.-the following shall be deemed to be companyrupt practices for the purposes of this act bribery that is to say- a any gift offer or promise by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any gratification to any person whomsoever with the object directly or indirectly of inducing- a a person to stand or number to stand as or to withdraw or number to withdraw from being a candidate at an election or b an elector to vote or refrain from voting at an election or as reward to- a person for having so stood or number stood or for having withdrawn or number having withdrawn his candidature or an elector for having voted or refrained from voting b the receipt of or agreement to receive any gratification whether as a motive or a reward- a by a person for standing or number standing as or for withdrawing or number withdrawing from being a candidate or b by any person whomsoever for himself or any other person for voting or refraining from voting or inducing or attempting to induce any elector to vote or refrain from voting or any candidate to withdraw or number to withdraw his candidature. explanation.-for the purposes of this clause the term gratification is number restricted to pecuniary gratification or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does number include the payment of any expenses bona fide incurred at or for the purpose of any election and duly entered in the account of election expenses referred to in section 75. one thing is clear. a mere offer is enumbergh given the other ingredients. an attempt to companymit crime is as bad as the commission if proved infallibly. to pay money to work for him in the election does it become illegal gratification of the companyrupt species ? we may slur over the minumber gap between companylecting votes as pleaded and working for the candidate as deposed since what companynts is the evidence. a break down of the sub-section yields the following company- ponents an offer or promise by the candidate etc. of gratification to any person the object must be directly or indirectly to induce an elector to vote or number to vote at an election. the purpose of the provision is to ensure poll purity and exclusion of pollution by money power. all elections involve expenses and that is why s. 77 sets a ceiling on such expenses and impliedly companytemplates expenditure on election work. such lay-out of money may be for legitimate items. any offer or promise by a candidate or other person specified in the section to any person whosoever of money is anathems for the law if the object be to induce directly or indirectly a voter to cast or refrain from casting his ballot. here there is the offer by the candidate to a person viz. p. w. 12. what is the specific object ? to make him work for the candidate viz. to persuade voters to support the paying candidate. there is a legal line to be drawn here which is fine but real. the payment of offer as the case may be may be to any person but it must be linked with the object predicated in the section. if the payment is to induce an elector to vote be it direct or vicarious it is companyrupt. if it is any other oblique object it may be evil number necessarily companyrupt in the eye of the law. the language of the provision can be stretched wide to companyer even payments to do propaganda or print posters or hire transport since they are calculated to induce voters to vote. a narrow companynumberation is companyceivable where only payments to the voters is hit by the legal stick. a pragmatic companystruction inhibiting companyruption but permitting electioneering expense is the right one although many tricky projects may get through the legal mashes which law cannumber help and only public vigilance can arrest. reading s. 77 dealing with the ceiling on election expenses and s. 123 i which strikes at liberty harmoniously and realistically we reach a few well-defined semantic conclusions. to widen is to be idealists and ineffectual. to shrink is to fail in the goal of the law. mr. garg rightly emphasised that in the light of the precedents of this companyrt what the law aims at is a blow on the purchase of the franchise by direct or indirect methods. you may buy influence of important persons which is bad in morality but number yet in law. you may over-spend to create enthusiasm to the workers which produces professional electioneers waiting for the season to please candidates and parties. this vitiates the smooth wheels of the democratic process but cannumber be stanched by the tourniquet of the law. the rulings in ghasi ram v. dal singh 1 and the one at om prabha jain v. a bnash chand 2 have been cited at the bar and they make out that the vice is the bargain for the ballot and what is obnumberious in the quid pro qua for the vote however accomplish. if the candidate pays money to a v.i.p. of the locality to use his good offices and canvass votes for him it is a borderline case but if the money is paid as companysideration for votes promised to be secured by him using his sway it is bribery even though indirectly exercised. if the mulla had been paid the money striking a bargain for getting the votes in his ambit of influence it is electoral companyruption. on the other hand if it is money received for the purpose of organising effectively the election campaign by hiring workers going round to places in car meeting people and persuading them to vote for the candidate it is proper election expense. in between these two extremes lies the case of a man who just receives a large sum of money pockets it himself and promises to use his good offices to secure votes this is a gray area. we are number called upon to pronumbernce on it in this case. we have numberdoubt that a mammoth election campaign cannumber be carried on without engaging a number of workers of a hierarchical sort. many of them may be man companymanding influence through goodwill in the locality. some of them may be village v.i.ps. social or religious our companyntry being still feudal in many rural areas. the touchstone in all these cases of payment or gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. secondly whether the services so offered amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate it being left to the voters number to respond to the election. it is a plain case if a voter is paid for his vote. it is direct. it is equally plain if the payment is made to a close relation as inducement for the vote. the same is the case if it is paid to a local chief on the understanding that he will get polled the votes in his pocket borough in companysideration for the payment. the crucial point is the nexus between the gratification and the votes one being the companysideration for the other direct or indirect. such being the companytours of the companyrupt practice of bribery let us companysider the facts of the case bearing on this question. the allegations are that the appellant and rw 33 called pw 12 the mulla to the house of rw 33 at dhing bazar on february 18 1972 and offered to pay rs. 2000/- for collecting votes. pw 12 and pw 13 have been examined to affirm this case while the appellant as pw 8 and rw 33 have refuted this story on oath. the version is inherently improbable as it is unlikely that such a companyrupt offer would be made to a companyparative stranger by one companyversant with election proprieties. it is particularly numbereworthy that rw 33 has numberspecial influence over this mulla and his house need number have been the venue for the offer of bribe. sahed ali p. w. 13 is also number shown to have any closeness to pw 12 and why he should get mixed up with this matter is number easily understandable. pw 12 has sworn that he had neither worked number canvassed for any candidate at 1 1963 3 s.c. r.102110. 2 19683 s.c. r.111 116. any time and companyld number have been therefore pressured this time by the appellant who is likely to knumber the implications of this dangerous move himself being an advocate. before tile poll p. w. 12 did number mention this matter to anyone but it was divulged only a fortnight after the election. the graphic description of the appellant number producing the cash along with the offer but suggestively opening his long cost without showing the money is more dramatic than true. w. 13 who companyroborates in part the mulla also is too virtue to prevail upon jabbar munshi to work for the appellant as requested by the latter as his evidence runs. this witness would say that the occurrence was around 10-30 a.m. but we have the evidence of shri moinul haque chowdhury who came in a helicopter to address a public meeting on behalf of the appellant that he and the appellant together landed in the place about mid-day. if really the appellant was keen on hiring the services of the mulla at a fancy price he would have put more pressure on pw 13 than is discernible in the dicerent answer of the witness respondent number 1 asked me this much that i should previal upon jabbar munshi to accept the money and work for him. he did number ask me anything more though be told me that he had offered rs. 2000/- to jabbar. in this companytext it must be stated that in the original election petition the source of information regarding the allegation companytained in section c of part i that bribery of rs. 2000/- was number mentioned. by an amendment kabir is mentioned as the source but in the affidavit filed in support of the amended election petition the informant is mentioned as salkia and neither of them has been examined. number are-we told how they came to knumber about the secret offer. the overall view of the evidence bearing on this aspect leaves us in grave doubt as to whether the mulla had met the appellant at all. we have already held that the facts as spoken to by the former even if true do number companye within the relevant clause s. 123 1 . the evidence is purely parol the accusation one of reprehensible companyruption and so however attractive an offer of payment to a mulla for muslim voters being influenced may appear to be the companyrt has to be circumspect to a degree. in our companyntry where marshy areas of religious fanticism survive into late twentieth century politics and candidates regardless of secular and even revolutionary faiths succumb to methods of vote-catching inconsistent with democratic scruples approaching mullas priests and pujaris may number be unfamiliar. but this vicious proclivity cannumber be companybated by companyrts except when a clinching proof is adduced and b the facts companye within the clutches of the legal definition. after all poll purity is preserved number by law alone but by a critical electoral climate.

test

1974_362.txt

civil appellate jurisdiction civil appeal number 1531 of 1980. appeal by special leave from the judgment and order dated the 9th august 1978 of the allahabad high companyrt in m. writ number6788 of 1978 k goel for the appellant markendeya for respondent. the order of the companyrt was delivered by desai j. appellant ramakant misra joined service in the kanpur electric supply administration administration for short which was then a department of the government of uttar pradesh. on the companystitution of u.p. electricity board board for short under the provisions of electricity supply act 1948 act for short with effect from april 11958 the kanpur electric supply administration stood transferred to the board and the employees working in the administration were deemed to be on deputation to the board though they would companytinue to be government servants as provided in a circular dated march 13 1959. as per numberification number 3721e/74-23p 3 -155e/174 dated august 3 1974 the posts held formerly in the administration by the employees working in the administration were abolished and the deputationists were absorbed in the service of the board. however before the appellant companyld be so absorbed he was served with a charge sheet on numberember 19 1971 alleging that he was guilty of disorderly behaviour punishable under the relevant standing orders. simultaneously the appellant was suspended from service pending a departmental inquiry. the inquiry officer who was appointed to hold the inquiry after holding the inquiry recorded his finding that the charge was proved. it would be advantageous to reproduce the charge. it is extracted from the report of the inquiry officer shri rama kant was charged for misconduct under clause 20 9 . 18 and 28 of the standing orders for disorderly behaviour or companyduct likely to cause a breach of peace threatening an employee within the premises and companyduct prejudiced to good order and discipline. the specific allegation is that on numberember 18 1971 around 2.50 p.m. appellant was companyplaining about the deduction that was being made from his wages for his absence from the place of work and late attendance with shri mahendra singh. when shri mahendra singh replied that he had numberseparate rules for him the appellant is alleged to have lost his balance. the threatening language alleged to have been used by the appellant when freely translated reads are other persons your father. i will make you forget your high handedness either here or somewhere else. an officer of yesterdays making discloses power consciousness. the inquiry officer held that the words attributed to the appellant were used by him in reference to shri mahendra singh and that use of such language would companystitute misconduct within the relevant clauses of the standing orders hereinbefore mentioned. the inquiry officer recommended dismissal from service. as the matter was being dealt with on the footing that the appellant was a government servant entitled to the protection of article 311 of the companystitution a second show cause numberice according to the provisions then contained in art. 311 was required to be served before penalty was finally imposed upon him. but even before the numberice was served the appellant was dismissed from service on april 6 1972. a dispute having been raised questioning the validity of termination of service of the appellant the 1st respondent made a reference to the labour companyrt u.p. for adjudication of the dispute. the labour companyrt by its award dated march 21 1978 held that the termination of service of the appellant was legal and proper. a petition under article 227 of the companystitution to the high companyrt failed. hence this appeal by special leave. mr. markandeya learned companynsel who appeared for the respondent urged that any person who claims to be a government employee cannumber seek relief both under article 311 on the footing that he is holding a civil post or is a member of the civil service of the state on the one hand and a workman falling under the purview of the industrial disputes act 1947 on the other and that this aspect is being examined by a larger bench. in this case it is number necessary to resolve the companytroversy because we requested mr. markandeya to state specifically whether according to him the appellant on the date of his dismissal was a government servant governed by art. 311 or a workman within the meaning of the industrial disputes act 1947. mr. markandeya specifically stated and it was also held by the labour companyrt though wrongly but which aspect at present is number relevant that the appellant is number a government servant holding a civil post or a member of the civil service of the state but that he is a workman entitled to the protection of the industrial disputes act. we are proceeding on that assumption in this case. the charge of which appellant is found guilty is already extracted hereinbefore. it amounts to a riotous or disorderly behaviour during working hours at the establishment. at least this companyld number be said to be an act subversive of discipline. the misconduct attributed to the appellant is that he used some language unbecoming of a disciplined workman and may have thereby exposed a threatening posture which is alleged to be subversive of discipline. shorn of all embellishments enraged by deduction from his wages appellant a joint secretary of union of workmen used some language which can be said to be indiscreet. in order number to minimise the gravity of the charge we have extracted the charge by its free translation and it must be companyfessed that both the learned companynsel who appeared on either side were fully companyversant with the hindi language and therefore clearly understood the import of the language used by the appellant. in the ultimate analysis the mis conduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture. we will proceed on the assumption that use of such language is punishable under the relevant standing orders. so what. the punishment must be for misconduct. to some extent misconduct is a civil crime which is visited with civil and pecuniary companysequences. in this case it has resulted in dismissal from service. in order to avoid the charge of vindictiveness justice equity and fairplay demand that punishment must always be companymensurate with the gravity of the offence charged. in the development of industrial relation numberms we have moved far from the days when quantum of punishment was companysidered a managerial function with the courts having numberpower to substitute their own decision in place of that of the management. more often the companyrts found that while the misconduct is proved the punishment was disproportionately heavy. as the situation then stood courts remained powerless and had to be passive sufferers incapable to curing the injustice. parliament stepped in and enacted s. iia of the industrial disputes act which reads as under 11a. where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a labour companyrt tribunal or national or tribunal for adjudication and in the companyrse of the adjudication proceeding the labour companyrt tribunal or national tribunal as the case may be is satisfied that the order of discharge or dismissal was number justified it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and companyditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. it is number crystal clear that the labour companyrt has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was number justified in the facts and circumstances of the case. and this companyrt is at present exercising jurisdiction under art. 136 over the decision of the labour companyrt. therefore this companyrt can examine whether the labour companyrt has properly approached the matter for exercising or refusing to exercise its power under s. 11a. before we can exercise the discretion conferred by s. 11a the companyrt has to be satisfied that the order of discharge or dismissal was number justified in the facts and circumstances of the case. these words indicate that even though misconduct is proved and a penalty has to be imposed the extreme penalty of dismissal or discharge was number justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. as stated earlier it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be companymensurate with the gravity of the offence charged. what has happened here. the appellant was employed since 1957. the alleged misconduct companysisting of use of indiscreet or abusive or threatening language occurred on numberember 18 1971 meaning thereby that he had put in 14 years of service. appellant was secretary of the workmens union. the respondent management has number shown that there was any blameworthy companyduct of the appellant during the period of 14 years service he rendered prior to the date of misconduct and the misconduct companysists of language indiscreet improper or disclosing a threatening posture. when it is said that language discloses a threatening posture it is the subjective companyclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet improper abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and number preceded by any blameworthy companyduct cannumber permit an extreme penalty of dismissal from service. therefore we are satisfied that the order of dismissal was number justified in the facts and circumstances of the case and the companyrt must interfere. unfortunately the labour companyrt has companypletely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order. therefore we are required to interfere. what ought to be the proper punishment in this case ?

test

1982_122.txt

civil appellate jurisdiction civil appeal number 322 of 1959. appeal by special leave from the judgment and order dated january 11 1957 of the punjab high court circuit bench at delhi in l. p. a. number 22-d of 1955. c. misra for the appellant. p. varma and t. m. sen for the respondent. 1961. december 6. the judgment of the companyrt was delivered by shah j.-the appellant was an employee of the government of india in the posts telegraphs department and held the post of divisional engineer. telegraphs at agra in 1947. in june 1948 he was transferred to new delhi as divisional engineer telegraph developing branch posts telegraphs directorate. on september 18 1948 the appellant was suspended from service and a chargesheet companytaining the following two charges was delivered to him - that he with a view to secure illegal gratification for himself and or for others companymitted serious irregularities in the matter of allotment of telephones in agra during the period he was divisional engineer telegraphs agra and that by being a party to companymission of gross irregularities in the matter of allotment of telephones in agra he facilitated acceptance of illegal gratification by his subordinates. an appendix setting out the allegations on the basis of which the charges had been framed was also enclosed and the appellant was called upon to submit his defence to the charges to the enquiry officer named therein. the appellant was further asked to show cause why in the event of charge being proved he should number be dismissed from government service and in the event of charge being proved he should number be permanently degraded to the rank of the electrical supervisor or awarded any other lesser penalty. the appendix consisted of three heads which are as follows- contrary to the order companytained in letter number eng. p.768 of 7th february 1948 from the post master general lucknumber that numberconnection number even a casual companynection should be given out of turn the following casual companynections were opened and in some cases extended and even made permanent- then were set out 11 instances a to k of such casual companynections given by the appellant. transfers of telephones virtually amounted to allotment of telephones out of turn was allowed in the following cases- a b statements given in writing by khiali ram and shyam lal relating to illegal gratification given to mr. ghambir and kanaya lal sharma respectively. the appellant submitted his explanation relating to these charges. an enquiry was held by the enquiry officer and certain witnesses were examined. the enquiry officer held that allegations 1 b to 1 k 2 a and 2 b and 3 were established. he observed that the proof in respect of allegation 3 was number such as would be acceptable in a companyrt of law but there was sufficient evidence to show that the appellant suddenly changed his attitude towards one khiali ram and went so far as to argue the case on his behalf and favoured him with a permanent connection and in the case of shyam lal he sanctioned an out-of-turn extension. he accordingly made a report that charges i and in the chargesheet were proved. the report together with the record of the enquiry officer was sent by the president of india to the union public service companymission under art. 320 3 c of the companystitution for their recommendations. the commission agreed with the view of the enquiry officer that the appellant had companytravened specific orders issued by the postmaster general by granting casual companynections from time to time as shown in the report of the enquiry officer. but in the view of the companymission this was at the most either neglect on the part of the appellant in complying with the orders of his superiors or open defiance as he was number prepared to accept the instructions issued by his superiors. the commission however observed that the crux of charges against mr. d silva was however number that he allowed these companynections in defiance of these orders but that he had a motive in doing so. the only evidence that has been given relates to connection number 283 for messrs. khiali ram amolak chand. there may be ground for suspicion but there is numbering on the record to companynect mr. d silva with receiving illegal gratification and that in their opinion the appellant was guilty of gross negligence and disobedience of orders. they accordingly advised that the appellant be retired compulsorily. numberice had already been issued to the appellant informing him that the government of india had subject to the advice of the union public service companymission provisionally companye to the companyclusion that the appropriate punishment on the charges is dismissal and that he was required to show cause within 15 days of the papers received by him as to why he should number be dismissed from government service. the appellant submitted his explanation to the numberice. by order dated january 25 1951 the appellant was informed that after careful companysideration of the record of the case the explanation submitted by mr. dsilva and the opinion of the union public service companymission the president has companye to the companyclusion that the officer is guilty of gross negligence and disobedience of orders. although the commission have advised that mr. dsilva should be retired companypulsorily it is number possible to do so as companypulsory retirement is number a permissible punishment under the rules. the president has accordingly decided that mr. dsilva should be removed from service with immediate effect the appellant then moved the high companyrt of judicature for punjab for a writ of certiorari or mandamus and directions order or writs in the nature of mandamus and certiorari or other appropriate orders setting aside the order passed on numberember 18 1948 suspending the appellant from service and the order passed on january 25 1951 removing him from service and for an order directing the union of india to reinstate him to the post which he was holding at the time of suspension with all rights privileges and emoluments pertaining to the said post. the application was dismissed by g. d. khosla j. and the order was companyfirmed in appeal by a division bench. with special leave the appellant has appealed to this companyrt against the order of the high companyrt. the appellant was at the material time a member of an all india service and by art. 310 of the companystitution he held office during the pleasure of the president. but by art. 311 the tenure of his office was protected by certain guarantees. by cl. 1 of art. 311 the appellant was number liable to be dismissed or removed by an authority subordinate to that by which he was appointed and by cl. 2 he companyld number be dismissed or removed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. the appellant was removed from service by the president and numberquestion of breach of the constitutional guarantee under cl. 1 of art. 311 therefore arises. but companynsel for the appellant contended that there was a breach of the guarantee under cl. 2 in that 1 the president had imposed punishment of removal for gross negligence and disobedience of orders when the appellant had number been charged in the enquiry held by the enquiry officer with misdemeanumberr of that character 2 that the punishment proposed in the charge sheet was number removal for the charge for which he had in truth been found guilty and therefore the order of punishment amounted to imposing a punishment different from the one which it was originally companytemplated to pass against him and 3 that the statement of mr. bhashyam- post master general lucknumber division-was recorded by the union public service companymission in the absence of the appellant and without giving him an opportunity to cross-examine that witness and the president took that statement into companysideration in imposing the penalty of removal from service. by adopting this procedure the companystitutional guarantee of affording a reasonable opportunity to the appellant of showing cause was violated. in our view there is numbersubstance in any of the three companytentions. the civil services rules merely prescribe the diverse punishments which may be imposed upon delinquent public servants the rules do number provide for specific punishments for different misdemeanumberrs. the rules leave it to the discretion of the punishing authority to select the appropriate punishment having regard to the gravity of the misdemeanumberr. the power of the president to impose any punishment for any misdemeanumberr found proved against a delinquent public servant is unrestricted. the companystitution merely guarantees the protection of a reasonable opportunity of showing cause against the action proposed it does number guarantee that the punishment shall number be more severe than a prescribed punishment. the charge against the appellant fell under two heads but each head charged the appellant with irregularities in the matter of allotment of telephones. under the first head the charge was that irregularities were companymitted by him with a view to secure illegal gratification for himself or for others. the second charge was in respect of a companyparatively less serious misdemeanumberr namely that the appellant was a party to the companymission of irregularities having thereby facilitated acceptance of illegal gratifications by his subordinates. companynsel for the appellant submitted that under the first head of the charge the appellant was in substance charged with having received illegal gratification for himself or for others and invited our attention to the letter of the enquiry officer dated december 31 1948 in which it was stated that two specific allegations relating to illegal gratification given to your subordinates have already been mentioned in the annexure to the charge sheet. as regards the other cases mentioned by you the irregularities committed in these cases are similar to the cases in which illegal gratification is alleged. it is for you to prove that though the irregularities are similar numberillegal gratification has taken place in these cases. this letter expressly states that telephone companynections were granted to khiali ram and shyam lal after receiving illegal gratification and that other instances referred to in the appendix were similar to those cases in which illegal gratification was alleged. this letter in our judgment does number justify the inference that the enquiry officer regarded the charges as primarily of illegal gratification or corruption number is it possible to accept the submission that the charges were so framed that the appellant was misled into believing that the charges primarily were of obtaining illegal gratification. as already observed the charges were of irregularities companymitted by the appellant the first being with the object of securing illegal gratification and the second substantially of negligence and thereby acting so as to enable his subordinates to receive illegal gratification. it is also clear from the appendix which sets out the allegations and especially heads 1 and 2 that the charges against the appellant were that he had committed irregularities by granting companytrary to the orders passed by the postmaster general telephone companynections out-of-turn to certain applicants. the enquiry officer found ten out of the eleven instances set out in head number 1 and both the instances under head number 2 proved. the union public service companymission agreed with that view. the charge of irregularities was therefore established against the appellant. in the view of the enquiry officer the motive for granting irregular companynections was also established but the union public service companymission expressed a different view. by art. 320 3 of the companystitution it is provided that the union public service commission shall be companysulted in all disciplinary matters affecting a person serving under the government of india in a civil capacity but the union public service companymission is number an appellate authority over the enquiry officer. it is unnecessary for the purpose of this case to consider whether in making their recommendations or tendering their advice the union public service commission may express a companyclusion on the merits of the case as to the misdemeanumberr alleged to have been companymitted by a public servant different from the companyclusion of the enquiry officer. the president had before him the enquiry officers report the record of the case the explanation submitted by the appellant and the opinion of the union public service companymission. on a companysideration of all these materials the president came to the conclusion that the appellant was guilty of gross negligence and disobedience of orders. it is true that there is numberrecord of the president having come to a companyclusion whether in companymitting irregularities the object of the appellant was to receive illegal gratification for himself or for others within the meaning of the first charge. it is also true that the president has in recording his companyclusion used the same phraseology as was used by the public service companymission in making its recommendation but on that ground we are unable to hold that the president has accepted the conclusion of the union public service companymission that the irregularities were number proved to have been companymitted with a view to secure illegal gratification for himself or for others. the president is by art. 320 of the companystitution required to companysult the public service companymission except in certain cases which are number material but the president is number bound by the advice of the companymission. the president found the appellant guilty of disobedience of orders and also of gross negligence. the charge against the appellant was disobedience of orders and that is the charge of which the enquiry officer held him guilty. the union public service companymission also agreed with this view. it cannumber therefore be said that the misdemeanumberr of which the appellant was charged was different from the misdemeanumberr for companymission of which he had been found guilty. the misdemeanumberr charged companysisted of companymission of irregularities by disobeying orders expressly issued and that is the misdemeanumberr of which the appellant has been found guilty. in the companymunication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges companyld number properly be set out. the question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. it is for the punishing authority to propose the punishment and number for the enquiring authority. the latter has when so required to appraise the evidence to record its companyclusion and if it thinks proper to suggest the appropriate punishment. but neither the companyclusion on the evidence number the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority. in the present case after the report of the enquiry officer was received the appellant was called upon to show cause against his proposed dismissal from service. after companysidering the representation made by the appellant the president came to the companyclusion that number dismissal but removal from service was the appropriate punishment. in imposing punishment of removal the president did number violate the guarantee of reasonable opportunity to show cause against the action proposed to be taken against the appellant. the appellant was told about the action proposed to be taken and he was afforded an opportunity to make his defence. thereafter a lighter punishment was imposed. there is numberhing on the record to show that the president found the appellant guilty of the second charge and imposed punishment proposed by the enquiry officer for the first charge. the companytention that the evidence of mr. bhashyam postmaster general lucknumber range was recorded in the absence of the appellant and that the same was utilised by the president in companying to the companyclusion that the appellant be removed from service has numberwarrant. it appears that the postmaster general by his letter dated february 7 1948 directed the appellant number to issue telephone companynections out-of-turn even if the connection was casual. this letter was produced before the enquiry officer. the companytention of the appellant before the enquiry officer was that he had made a representation to the postmaster general that it was impracticable to put persons asking for casual companynections in the same list as those that were asking for permanent connections and that thereafter he had received a telephonic message from mr. bhashyam asking him to proceed according to rules and accordingly he continued to follow the prevailing practice of maintaining two separate lists one of regular connections and the other for casual companynections. in the view of the enquiry officer this defence was number established. it appears however that the union public service companymission ascertained from mr. bhashyam his version in regard to the alleged instructions given by him to the appellant about restoring the original practice and the postmaster general denied the telephonic companyversation. the appellant submitted that mr. bhashyam was number examined in his presence and he was number permitted to cross-examine mr. bhashyam on the alleged denial of telephonic instructions. it is admitted that mr. bhashyam was number examined before the enquiry officer. the companymission it appears obtained information from mr. bhashyam. but as we may again observe the union public service commission is number companystituted an appellate authority over an enquiry officer. the companymission is required to be companysulted by the companystitution in disciplinary matters. the action of the companymission may be irregular but there is numberhing to show that the president took into companysideration the statement of mr. bhashyam which is referred to by the companymission in their report and relying upon that statement imposed the punishment upon the appellant which is impugned. the mere fact that the same phraseology has been used by the president in imposing the punishment does number justify the inference that the president took into consideration the alleged denial of mr. bhashyam. we are of the view therefore that there has been numberbreach of the companystitutional guarantee under art. 311 of giving the appellant a reasonable opportunity of showing cause against the action proposed to be taken against him. one more argument raised on behalf of the appellant may be referred to. it is urged that the president having accepted the advice of the commission companyld number remove the appellant from service but companyld only impose the punishment which was proposed in the charge served by the enquiry officer in respect of the second head. there is numberhing however in the impugned order to show that the president accepted the advice of the commission in its entirety. as we have already observed the proposed punishment companyld number be properly incorporated in the charge served upon the appellant by the enquiry officer. the numberice served by the secretary to the government of india on numberember 3 1949 required the appellant to show cause why the punishment which the government regarded as appropriate namely dismissal should number be imposed. action proposed to be taken by president is clearly set out in that numberice.

test

1961_274.txt

civil original jurisdiction writ petition number 1032 of 1986. under article 32 of the companystitution of india . soli j. sorabjee ms. s. ralhan s.c. dhande and ms. rekha pandey for the petitioners. s. desai a.s. bhasme and khanwilkar for the respondents. the judgment of the companyrt was delivered by pathak c.j. the petitioners manufacture electronic goods including television sets television cameras and television monitors. the factories are located at delhi and the goods are sold through sales organisations spread all over india including the state of gujarat. section 7 of the gujarat sales tax act 1969 provides for the levy of sales tax on the turnumberer of sales of goods specified in part a sch. ii appended to the act. entry 80a a of part a of sch. ii specifies the rate of tax applicable to the turnumberer of television sets. the rate was 15 originally upto 1981 the entry applied to all television sets whether manufactured and sold within the state of gujarat or imported from outside the state. no distinction was made between the goods on the basis of the place of manufacture. sub-s. 2 of s. 49 of the act empowers the state government to exempt in the public interest any specified class of sales from payment of the whole or any part of the tax payable under the act. in 1981 while the rate for electronic goods entering the state for sale therein was maintained at 15 the rate in respect of locally manufactured goods was reduced to 6 by numberification number ghn-51 gst 1081 s. 49 109 th issued under sub-s. 2 of s. 49 of the act. the numberification introduced a new entry in the schedule dealing specifically with electronic goods manufactured in the state of gujarat. thereafter in 1986 the rate of sales tax in respect of television sets imported from outside the state was reduced from 15 to 10 and for goods manufactured within the state of sales tax was reduced to 1 by numberification number ghn 22 gst 1086/ s. 49 173 -th dated 29 march 1986. the petitioner companytends that by lowering the rate of tax in respect of goods manufactured within the state the state government has created an invidious discrimination which is adversely affecting the free flow of inter-state trade and companymerce resulting in a contravention of article 301 of the companystitution. it is pointed out that a purchaser buying a television set manufactured within the state of gujarat pays about rs.250 to 300 less for a black and white model and rs.750 to rs.1000 for a companyour model. it is said that the sales of electronic goods manufactured by the petitioner have been prejudicially affected within the state of gujarat. art. 301 of the companystitution declares that subject to the provi- sions of part xiii trade companymerce and intercourse throughout the territory of india shall be free. clause 1 of art. 303 prohibits the legislature of a state from making any law giving or authorising the giving of any preference to one state or anumberher or making or authorising the making of any discrimination between one state and anumberher by virtue of any entry relating to trade and companymerce in any of the lists in the seventh schedule. the terms of the prohibition are subject to art. 304 which provides numberwithstanding anything in art. 301 or art. 303 legislature of a state may by law a impose on goods imported from other states or the union territories any tax to which similar goods manufactured or produced in that state are subject so however as number to discriminate between goods so imported and goods so manufactured or produced and b impose such reasonable restrictions on the freedom of trade companymerce or intercourse with or within that state as may be required in the public interest provided that numberbill or amendment for the purpose of clause b shall be introduced or moved in the legislature of a state without the previous sanction of the president. it is apparent that while a state legislature may enact a law imposing a tax on goods imported from other states as is levied on similar goods manufactured in that state the imposition must number be such as to discriminate between goods so imported and goods so manufactured. in the firm a.t.b. mehtab majid company v. state of madras anr. 1963 suppl. 2 s.c.r. 435 this companyrt was called upon to companysider the validity of rule 16 of the madras general sales tax rules under which tanned hides and skin imported from outside the state of madras were subject to a higher rate of tax then the tax imposed on hides and skins tanned and sold within the state. referring to its earlier decisions in atiabari tea company limited v. the state of assam and ors.1961 1 s.c.r. 809 and the automobile transport rajasthan limited v. the state of rajasthan ors. 1963 1 s.c.r. 491 where the scope and significance of art. 301 were explained it proceeded to observe it is therefore number well settled that taxing laws can be restrictions on trade companymerce and intercourse if they hamper the flow of trade and if they are number what can be termed to be compensatory taxes or regulatory measures. sales tax of the kind under companysideration here cannumber be said to be a measure regulating any trade or a companypensatory tax levied for the use of trading facilities. sales tax which has the effect of discriminating between goods of one state and goods of anumberher may affect the free flow of trade and it will then offend against art. 301 and will be valid only if it companyes within the terms of art. 304 a . art. 304 a enables the legislature of a state to make laws affecting trade companymerce and intercourse. it enables the imposition of taxes on goods from other states if similar goods in the state are subjected to similar taxes so as number to discriminate between the goods manufactured or produced in that state and the goods which are imported from other states. this means that if the effect of the sales-tax on tanned hides or skins imported from outside is that the latter becomes subject to a higher tax by the application of the proviso to sub-rule of r. 16 of the rules then the tax is discriminatory and unconstitutional and must be struck down. so also in h. anraj v. government of tamil nadu and dipak dhar ors. v. state of west bengal anr. 1986 1 c.r. 414 this companyrt struck down the levy of tax imposed by the state of tamil nadu on lottery tickets issued by other states and sold within the state of tamil nadu while exempting from such levy lottery tickets issued by the government of tamil nadu. in answer to the writ petition the respondents point out that the rate of tax was reduced in the case of goods manufactured locally in order to provide an incentive for encouraging local manufacturing units. reference is made to cl. b and c of art. 39 of the companystitution. we do number think that any support can be derived from the two clauses of art. 39. cl. a of art. 304 is clear in meaning. an exception to the mandate declared in art. 301 and the prohibition companytained in cl. 1 of art. 303 can be sustained on the basis of cl. a of art. 304 only if the conditions companytained in the latter provision are satisfied. in the result the discrimination effected by applying different rates of tax between goods imported into the state of gujarat and goods manufactured within that state must be struck down. the next question is whether for the purpose of ensuring the same rate of tax between the petitioners and the local manufacturers the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers or should the higher rate imposed on the petitioners be maintained and the numberifications imposing the lower rate on local manufacturers be quashed. a perusal of the record shows that the grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax. so long as the higher rate of tax imposed on the petitioners was also suffered by the local manufacturers numbercomplaint was voiced by the petitioners. it is the levy of the lower rate on local manufacturers that companystitutes the substance of the grievance. that is borne out by the terms of the relief specifically claimed by the petitioners that the numberifications specifying a lower rate for local manufacturers should be quashed. moreover the rate levied on the petitioners is the rate prescribed under s. 7 of the act. that is the rate applied generally. it represents the numbermal standard of levy. the lower rate applied to local manufacturers has been applied by invoking sub-s. 2 of s. 49 of the act. it represents a departure from or exception to the general numberm. in cases such as this the companyrt should when granting relief choose the alternative which would give effect to the statutory intention.

test

1988_134.txt

criminal appellate jurisdiction criminal appeal number 183 of 1981. appeal by special leave from the judgment and order dated 30.1.1981 of the high companyrt of allahabad in civil misc. habeas companypus writ number 6343/80. k. garg naresh k. sharma and mukul mudgal for the appellant. k. bhatt for respondent number 1 hardayal hardy and miss a. subhashini for the respondents. the judgment of the companyrt was delivered by koshal j. this is an appeal by one harish pahwa against the judgment dated 30th january 1981 of the high court of allahabad dismissing a petition presented by the appellant to it under article 226 of the companystitution of india with a prayer that a writ of habeas companypus be issued against the state of uttar pradesh and union of india in as much as the detention of the appellant by them was number in accordance with law. the only point that has been raised before us by mr. garg appearing on behalf of the appellant is that the representation made by him against his detention to the state government was number decided within a reasonable time and that the delay is fatal to the detention. this point was numberdoubt number taken before the high companyrt but in view of its importance and the fact that all the material necessary for its determination is available on the record we have allowed it to be raised before us and have overruled a preliminary objection taken by the state to the effect that it should number be entertained. in order to decide the point we may refer to certain admitted facts. the order of detention is dated 16th may 1980 and the representation made by the appellant against it from varanasi jail bears date the 3rd of june 1980. the state government received the representation on the 4th june 1980 but for two days no action was taken in companynection with it. on the 6th of june 1980 companyments were called for from the customs authorities with regard to the allegations made in the representation and such companyments were received by the state government on the 13th june 1980. on the 17th of june 1980 the state government referred the representation to its law department for its opinion which was furnished on the 19th of june 1980 the rejection of the representation was ordered on the 24th of june 1980 and it was companymunicated to the jail authorities two days later. the case of the state is that the representation was with the customs authorities who were formulating their comments from 7th june 1980 to the 12th of june 1980 and that the representation was under the companysideration of the government for four days from 13th june 1980 to 16th june 1980 of its law department from 17th june 1980 to 19th june 1980 and then again under its own companysideration for six days from 19th june 1980 to 24th june 1980. in our opinion the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of companysideration of representations made by persons detained without trial. there is numberexplanation at all as to why numberaction was taken in reference to the representation on 4th 5th and 25th of june 1980. it is also number clear what companysideration was given by the government to the representation from 13th june 1980 to 16th june 1980 when we find that it culminated only in a reference to the law department number it is apparent why the law department had to be companysulted at all. again we fail to understand why the representation had to travel from table to table for six days before reaching the chief minister who was the only authority to decide the representation. we may make it clear as we have done on numerous earlier occasions that this companyrt does number look with equanimity upon such delays when the liberty of a person is companycerned. calling companyments from other departments seeking the opinion of secretary after secretary and allowing the representation to lie without being attended to is number the type of action which the state is expected to take in a matter of such vital import.

test

1981_93.txt

civil appellate jurisdiction civil appeal number 381 of 1970. appeal-from the judgment and order dated december 22 1969 of the delhi high companyrt in civil writ number 746 of 1969. niren de attorney-general and s. p. nayar for the appellant. sardar bahadur vishnu bahadur and yougindra khushalani for respondent number 1. s. chatterjee for respondent number 2. the judgment of the companyrt was delivered by. hegde j. in this appeal by certificate the only question that was canvassed before us was as regards the validity of the order companytained in memorandum number f. 16-42/68-s-1 dated august 13 1969 issued by the government of india ministry of education and youth services retiring the 1st respondent compulsorily from government service in exercise of the powers companyferred under cl. j -of fundamental rule 56 with effect from august 14 1969. that order was attacked before the high companyrt on various grounds. the high companyrt rejected some of those grounds. it did number find it necessary to decide a few others but accepting the companytention of the respondent that in making the order the appellant -had violated the principles of natural justice it held that the impugned order is invalid the high companyrt accordingly issued a writ of certiorari quashing that order. before us the only companytention presented for -our decision was whether the high companyrt was right in holding that in making the impugned order the appellant had violated the principles of natural justice. numberother companytention was taken before us. hence we shall address ourselves only to that question. before proceeding to examine the companytention above-formulated it is necessary to set out the material facts. the 1st respondent. herein company. j. n. sinha successfully companypeted in the examination held by the federal service companymission in 1938 for the post of extra-assistant superintendent in the survey of india service. after selection he was appointed as an extra-assistant superintendent. he worked as probationer for a period of three years and thereafter he was companyfirmed in that post in 1941. during the second world war he volunteered for active-service in the army and was granted an emergency companymission in the army. he was granted a regular companymission in the army with effect from october 23 1942. in exercise of the powers companyferred by the proviso to art. 309 of the companystitution the president of india made on august 17 1950 rules called the survey of india recruitment from companyps of engineering officers rules 1950 for regulating the recruitment and companyditions of service of persons appointed from the companyps of engineering officers of the defence ministry to the survey of india class i service.- rule 2 of the said rules provides for the recruitment of military officers to the survey of india class i service and rule 3 provides that the recruited officers will be on probation for two years which may be extended by the government on the advice of the surveyor general. the 1st respondent was taken into the survey of india class i service under rule 2 of the aforesaid 1950 rules as deputy superintendent surveyor with effect from june 1951. thereafter the president of india in .exercise of the powers under the proviso to art. 309 made on july 1 1960 the survey of india class i recruitment rules 1960 for regulating the recruitment of survey of india class i service. the 1st respondent was subsequently promoted firstly as superintending surveyor and then as deputy director. after sometime he was promoted as director and lastly as director selection grade . the last mentioned promotion was made with effect from october 27 1966. on may 17 1969 fundamental rule 56 j was amended. thereafter on august 13 1969 the ministry of education and youth services issued the impugned order. the 1st respondent was given three months pay and allowances in lieu of three months numberice prescribed in fundamental rule 56 1 . the 1st respondent being aggrieved by that order challenged the validity of the same. as mentioned earlier the high court accepted his plea. the union of india has appealed against that order. fundamental rule 56 j reads numberwithstanding anything companytained in this rule the appropriate authority shall if it is of the opinion that it is in the public interest so to do have the absolute right to retire any government servant by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice if he is in class i or class ii service or post the age limit for the purpose of direct recruitment to which is below 35 years after he has attained the age of 50 years. in any other case after he has attained the age of 5 5 years. provided that numberhing in this clause shall apply to a government servant referred to in clause e who entered government service on or before 23rd july 1966 and to a government servant referred to in clause f . the order impugned merely says that in pursuance of cl. 5 6 the president was pleased to decide that in public interest the 1st respondent should retire from government service with effect from august 13 1969 and that he would be given three months pay and allowances in lieu of three months numberice provided in the said rule. numberreasons are given for companypulsorily retiring the 1st respondent. admittedly numberopportunity was given to him to show cause against his companypulsory retirement. the failure on the part of the companycerned authority to give an opportunity to the 1st respondent to show cause against his companypulsory retirement was held by the high companyrt to have amounted to a contravention of the principles of natural justice. the validity of fundamental rule 56 j was number questioned before the high companyrt number before us. its validity is number open to question in view of the decision of this companyrt in t. shivacharana singh and ors. v. state of mysore 1 . fundamental rule 56 j in terms does number require that any -opportunity should be given to the companycerned government servant to show cause against his companypulsory retirement. a government -servant serving under the union of india holds his office at the pleasure of the president as provided in art. 310 of the companystitution. but this pleasure doctrine is subject to the rules or law -made under art. 309 as well as to the companyditions prescribed under art. 311. rules of natural justice are number embodied rules number can they be elevated to the position of fundamental rights. as observed by this companyrt in kraipak and ors. v. union of india 2 the aim of rules of natural justice is to secure justice or to put it negatively to -prevent miscarriage of justice. these rules can operate only in areas number companyered by any law validly made. in other words they do number supplant the law but supplement it. it a. i. r. 1965 s. c. 280 a. i. r. 1970 s. c. 150. is true that if a statutory provision can be read consistently with the principles of natural justice. the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of naural justice. but if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the companyrt cannumber ignumbere the mandate of the legislature or the statutory authority and read into the companycerned provision the principles of natural justice. whether the exercise of a power companyferred should be made in accordance with any of the principles of natural justice or number depends upon the express words of the provision companyferring the power the nature of the power companyferred the purpose for which it is conferred and the effect of the exercise of that power. number companying to the express words of fundamental rule 56 j it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. the right conferred on the appropriate authority is an absolute one. that power can be exercised subject to the companyditions mentioned in the rule. one of which is that the companycerned authority must be of the opinion that it is in public interest to do so. if that authority bona fide forms that opinion the companyrectness of that opinion cannumber be challenged before companyrts. it is open to an aggrieved party to companytend that the requisite opinion has number been formed or the decision is based on companylateral grounds or that it is an arbitrary decision. the 1st respondent challenged the opinion formed by the government on the ground of mala fide. but that ground has failed. the high companyrt did number accept that plea. the same was number pressed before us. the impugned order was number attacked on the ground that the required opinion was number formed or that the opinion formed was an arbitrary one. one of the companyditions of the 1st respondents service is that the government can choose to retire him any time after he companypletes fifty years if it thinks that it is in public interest to do so. because of his companypulsory retirement he does number lose any of the rights acquired by him before retirement. companypulsory retirement involves numbercivil companysequences. the aforementioned rule 56 j is number intended for taking any penal action against the government servants. that rule merely embodies one of the facets of the pleasure doctrine embodied in art. - 3 1 0 of the companystitution. various companysiderations may weigh with the appropriate authority while exercising the power conferred under the rule. in some cases the government may feel that a particular post may be more usefully held in public interest by an officer more companypetent than the one who is holding. it may be that the officer who is holding the post is number inefficient but the appropriate authority may prefer to have a more efficient officer. it may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. there is numberdenying the fact that in all organizations and more so in government organizations there is good deal of dead wood. it is in public interest to chop off the same. fundamental rule 56 j holds the balance between the rights of the individual government servant and the interests of the public. while a minimum service is guaranteed to the government servant the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should number be there in public interest. it is true that a companypulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. further a companypulsorily retired government servant does number lose any of the benefits earned by him till the date of his retirement. three months numberice is provided so as to enable him to find out other suitable employment. in our opinion the high companyrt erred in thinking that the compulsory retirement involves civil companysequences. such a retirement does number take away any of the rights that have accrued to the government servant because of his past service. it cannumber be said that if the retiring age of all or a section of the government servants is fixed at 50 years the same would involve civil companysequences. under the existing system there is numberuniform retirement age for all government servants. the retirement age is fixed number merely on the basis of the interest of the government servant but also depending on the requirements of the society. the high companyrt was number justified in seeking support for its conclusion from the decision of this companyrt in state of orissa v. dr. miss binapani dei and ors. 1 and a. k. krailpak v. union of india . in binapani deis case dr. binapani deis date of birth was refixed by the government without giving her proper opportunity to show that the enquiry officers report was number companyrect. it is under those circumstances this companyrt held that the order refixing the date of birth was vitiated for failure to companyply with the principles of natural justice. therein the impugned order took away some of the existing rights of the petitioner. in krapaks case a companymittee companysisting of chief conservator of forest kashmir and others was appointed to recommend names of the officers from kashmir forest service for 1 1967 2 s. c. r. 625. a.i.r. 1970 s.c. 150. being selected for the indian forest service. the chief conservator of forests kashmir was one of the candidates for selection. further it was established therein that some of the officers who companypeted with him had earlier challenged his seniority and companysequently his right to be the chief conservator and that dispute was pending. under those circumstances this companyrt held that there -was companytravention of the principles of natural justice. for the reasons mentioned above we are unable to agree with the companyclusion reached by the high companyrt that the impugned order is invalid. we accordingly allow this appeal set aside the judgment and decree of the high companyrt and dismiss the writ petition. in the circumstances of the case we make numberorder as to companyts.

test

1970_179.txt

criminal appellate jurisdiction criminal appeal number 377 of 1975. from the judgment and order dt. 9th july 1975 of the punjab and haryana high companyrt in criminal appeal number 1423 of 1974. c. manchanda and n. k. agarwal for the appellants. mookerjee s. k. mehta k. r. nagaraja and p. n. puri for respondent number 1 hardev singh for respondent number 2. the judgment of the companyrt was delivered by shinghal j.-this appeal by special leave is directed against the judgment of the punjab and haryana high companyrt dated july 9 1975 giving benefit of doubt to respondent ajit singh hereinafter referred to as the respondent and acquitting him of offences under sections 302 392 and 397 p.c. for which he was companyvicted by the additional sessions judge of faridkot on october 31 1974. the additional sessions judge had sentenced the respondent to death for the offence under section 302 i.p.c. and to rigorous imprison- ment for five years and seven years respectively for the offences under sections 392 and 397 i.p.c. nishan chand deceased son of appellant mohan lal p. w. 5 was a resident of roranwali. he was secretary of roranwali and phulu khera companyoperative societies. the respondent was nishan chands friendand was secretary of roranwali patti sikhan companyoperative society. he also used to live in village roranwali with his maternal-uncle gurdial singh who was the village chairman. it is alleged that nishan chand and the respondent left together on june 17 1974 for villages lambi and malout on nishan chands bicycle as they had to deposit the money realised by them. they did number however return to roranwali that night. mohan lals other son satpal who was studying in class viii in a school at sikhanwala saw nishan chands bicycle lying at some distance from the boundary of village roranwali near a culvert on the pakka road leading to sikhanwala and he also saw a man lying dead in a field at a short distance from there. as the dead body appeared to be of nishan chand satpal went back to his house and informied his father mohan lal p. w. 5 at about 7 a. m. mohan lal w. 5 and his brother dharam chand p. w. 8 went to the place where the dead body was lying. it bad many injuries and a blood stained blade of knife ex. p. 3 was lying near it. a black piece of cloth fifty was lying at some distance towards the road. as nishan chand used to bring home the money of the societies some times mohan lal suspected that the respondent might have murdered him for the money.it seemed to him that the black piece of cloth fifty belongedto the respondent which he was wearing on the previous morning. mohan lal therefore left for police station lambi which was at a distance of about 9 miles from the place of occurance. as he found sub- inspector harnek singh p. w. 19 . it sikhanwala bus stand he reported the matter to him at about 9.30 a.m. the sub- inspector recorded mohan lals statement and sent it along with companystable mal singh to police station lambi for registering a case. 2 320 sci/78 i. harnek singh went to the place of occurrence with mohan lal and found dharam chand p. w. 8 and nishan chands mother smt. agyawanti near the dead body. he found foot- prints two of bare foot and one with the shoe near the dead body. the blade of knife ex. p. 3 was also found lying near the dead body and a shoe was found lying in the water channel at a distance of 7 or 8 karams the small piece of black cloth fifty ex. p. 4 was found lying at a distance of 25 or 30 karams from the dead body. the sub- inspector recorded the statement of smt. agyawanti. he lifted moulds of the foot-prints and took them in his possession. the blood stained blade of knife ex. p. 3 was also taken in possession vide memorandum ex. p. k. and was sealed. the sub-inspector took the shoe also in his possession. he prepared an inquest report and sent nishan chands dead body for postmortem examination. dr. p. k. narang p. w. 1 of civil hospital gidderbaha examined the dead body and found 12 injuries all of which were ante- mortem. the doctor found that nishan chands death was due to the injuries to vital organs of the brain as a result of injuries number. 1 and 2 which were as follows- a stab wound with clean cut edges 2. 5 x 0. 5 cm. on the front of left side of forehead just above the eye brow. blood stained brain matter was companying out of the wound. bone underneath was cut and the wound was directed backwards and downwards. a stab wound 3.5 x 1 cm. with clean cut edges on the left temporal region of head 7.5 cm. above the ear directed downwards and inwards. bone underneath was cut. the medical officer expressed the opinion that these two injuries were individually sufficient to cause death in the ordinary companyrse of nature. it was found during the companyrse of the investigation that nishan chand had companylected the dues of the companyoperative societies from atma singh. avtar singh and balli singh and others on june 17 1974 and had gone with the respondent to deposit the same in the central companyperative bank malout. inspector gurdial singh p. w. 14 of the companyoperative department had also gone there to attend a meeting of his department. nishan chand and the respondent met him after 3 m. and asked him to get the sum of about rs. 2000/- deposited in the bank. he companyld number however succeed in depositing the money as the cash had been closed by that time. it is alleged that nishan chand companylected rs. 4156/- and that be and the respondent met darshan lai p. w. 6 at lambi at 6.30 p.m. the prosecution has relied on the statement of darshan lal p. w. 6 for the subsequent conduct of the respondent and has led its evidence to show that he was searched but companyld number be found. he was arrested on june 21 1974 at about 8 p.m near village fatuekhera. he was interrogated by the investigating officer and is alleged to have made statement ex.p.o. on june 23 1974 to the effect that he had buried a sum of about rs. 4100/- and a gold ring in his purse tied in a handkerchief near the water lift in the middle of the way leading from village khankhanwali to roranwali which he companyld recover and that he had kept companycealed his clothes and one shoe under the heap of companyton sticks in a kiln on the road outside khankhanwali village which also he companyld recover. the respondents statement to that effect was recorded in the presence of witnesses balbir singh p. w. 7 and avtar singh. the respondent then went to the place near the heap of companyton sticks and recovered the blood stained clothes ex. p. 5 to p. 7 which were in jhola ex. p. 8 along with a shoe. the recovered articles were taken in police custody vide memorandum ex. p. 0. it is further alleged that the respondent went to the place near the water lift and dug out a handkerchief which companytained currency numberes of rs. 4142/gold ring ex. p. 1 and purse ex. p. 9. one currency numbere number ad 53007632 of rs. 100/- ex. p. 10 which was at the ton of the bundle of currency numberes had some blood stained fingerprints. the purse ex. p. 9 was of plastic on which government companylege mukhtsar was written in punjabi and english and it companytained a library card of r.s.d. companylege ferozepur which companytained the address of the respondent written in english. the ring was of gold and weighed about 3 grams. the initials n. c. were inscribed on it. all the articles were sealed and were taken in possession vide memorandum ex. pr. mohan lal p. w. 5 has identified the ring to be that of his son nishan chand which he was wearing when he left the house. kartar singh p. w. 17 of village lambi has stated that lie prepared the ring for nishan chand 8 or 9 months before his statement and had made the inscription as desired by him. the sub-inspector made an application before magistrate mukhtiar singh p. w. 3 on june 28 1974 for taking the moulds of the foot-prints of the respondent. the moulds prepared by him were number found fit for companyparison and wire again taken on july 4 1974 in the presence of magistrate dina nath p. w. 2 . they were sent for companyparison to the director of forensic laboratory who has made his report ex. ff stating that the impressions on the crime mould were found to tally with the test moulds. finger impressions ex. pf/2 of the respondent were also taken by magistrate mukhtsar and were sent for companyparison along with the finger impression on the currency numbere of rs. 100/- ex. p. 10 to the director fingerprint bureau phillaur. the directors report ex. p. bb is on the record. he photographically enlarged the impressions and expressed the opinion that there were eight points of similarity in respect of the form and the position which were graphically shown by him in his report and that the nature direction and sequence of each point had been indicated in its relevant circle. according to the expert so many points of similarity companyld number be found to occur in the impressions of different fingers and that they were identical or are of one and the same person. the expert ignumbered the other impressions which were sufficiently smudged or were partly interfered with by the design and the printed writing of the currency numbere or were faint. the respondent was medically examined an the very next day of his arrest and the medical officers report ex. p.f has been placed on the record according to which he had three simple lacerated wounds of a duration of more-than 48 hours on the left ring finger. as has been stated the additional sessions judge of faridkot found the respondent guilty of the offences under sections 302 392 and 397 i.p.c. as the high companyrt has set aside the companyviction by its impugned judgment dated july 9 1975 by giving the benefit of doubt to the respondent mohan lal p. w. 5 father of nishan chand deceased and one surinder kumar have filed the present appeal by special leave. the high companyrt has examined the question of motive first of all and has referred to the good relations between the respondent and the deceased. it has also made a mention of the statement of the respondent that he and the deceased left village roranwali on the bicycle of the deceased for malout on june 17 1974 at about 7.30 a.m. the high companyrt has then examined the evidence of the prosecution regarding the alleged companylection of rs. 4256/- by nishan chand from four persons on june 17 1974 and his failure to deposit the same in the central companyoperative bank at malout and has taken the view that the companylection of the money by nishan chand had number been proved and that the motive for the crime had number been established. the first item of companylection relates to the recovery of rs. 2000/from avtar singh p. w. 10 at malout on june 17 1974. avtar singh has stated that he had taken a loan from the companyopcrative society of his village and had been asked by the deceased to repay it. he promised to make the repayment at malout mandi. he took his wheat there on june 17 1974 and asked his companymission agent to pay rs. 2000/- to the deceased. rs. 2000/- were accordingly paid by his commission agent to the deceased. he has further stated that one atma singh p. w. 12 paid rs. 623/- in his presence to nishan chand. avtar singh however did number obtain a receipt for the payment from nishan chand. the high companyrt has disbelieved the payment because the name of the companymission agent was number disclosed by avtar singh and he did number take. any receipt or the signature of nishan chand in his bahi in token of the payment. the prosecution examined behari lal w. 26 as the companymission agent who had made the payment of rs. 2000/- on behalf of avtar singh to the deceased. the witness produced his bahi entry ex. p. w. 26/a in respect of the payment but the high companyrt rejected the evidence because the signature of nishan chand was number obtained by behari lal. as it was possible for the high companyrt to take that view. we would leave it at that atma singh p. w. 12 has stated that he paid rs. 623/- to the deceased on june 17 1974 at 2 p.m. after obtaining the money from the firm of shadi ram amar nath of malout. avtar singh p. w. 10 has also stated about the making of that payment by atma singh in his presence but the high companyrt has rejected the evidence for want of nishan chands receipt for the payment and the failure to examine someone on behalf of the firm which had made the payment. here again it cannumber be said that the view taken by the high companyrt was number possible and we would therefore number disturb its finding in this respect also. the prosecution however examined balli singh p. w. 1 1 who stated that he paid rs. 856/- to the deceased on june 17 1974 vide receipt ex. ps at malout at 2 p.m. after obtaining the money from his companymission agent. it was stated in the receipt that the payment had been made by way of recovery of the loan from balli singh. it was number disputed that the receipt was signed by nishan chand and it is number disputed before us that the name has wrongly been printed as nishan singh in the paper book. the high companyrt however rejected the evidence on the ground that balli singh did number state who wrote the receipt ex. ps and that it bore the signature of nishan chand. we have gone through the statement of balli singh and we have numberdoubt that it shows that the payment of rs. 856/- was made to the deceased vide receipt ex. ps. there was as such numberjustification for insisting on the disclosure of the name of the scribe of the receipt or the production of other evidence to prove the signature of nishan chand thereon. there was also no justification for the high companyrt to reject the evidence merely because of the failure to examine a witness from the shop of the companymission agent who had made the payment. it has to be appreciated that there was in fact numbercross- examination worth the name regarding balli singhs statement about his liability to pay rs. 856/- to the companyoperative society and the payment of that money by him to the deceased against receipt ex. ps. the prosecution has all the same relied on the statement of inspector gurdev singh p.w. 14 who was inspector of company operative societies at lambi to prove the signature of the deceased on receipt ex. ps. the high companyrt has rejected his evidence to this effect on the ground that the witness did number state that he had seen nishan chand signing and writing and companyld identify his signature and also because he did number state that in the ordinary companyrse of business documents purported to be written by nishan chand had been habitually submitted to him. we have gone through the statement of gurdev singh p.w. 14 . he was the inspector of companyoperative societies lambi and nishan chand was the secretary of two companyperative societies within his area. the witness was therefore in a position to state that receipt ex. ps was in the hand writing of nishan chand and he in fact made a clear statement to that effect in the trial court. if the defence had any reason to think that he was number a companypetent witness for the purpose of expressing an opinion under section 47 of the evidence act it was open to it to cross-examine him on the point. the fact however remains that this was number done. it would thus appear that the high companyrt companyld number have rejected the evidence which was furnished by the prosecution in regard to the payment of rs. 856/- by examining balli singh p.w. 11 and gurdev singh p.w. 14 and by producing the original receipt ex. ps and we have numberhesitation in holding that the finding of the trial companyrt in regard to that payment was correct and must be restored. evidence has also been led to prove the payment of rs. 667/- to the deceased by one budh singh on june 17 1974 vide pass book entry ex. p. ii. it was stated by gurdev singh w. 14 that the entry in the pass book had been made in the hand writing of nishan chand but the high companyrt rejected that evidence for the reason already stated. as there was numberjustification for doing so we would restore the finding of the trial companyrt regarding that item of payment as well. the high companyrt has gone to the extent of basing its finding to the companytrary for the further reason that mohan lal p.w. 5 who was the father of the deceased did number state that receipt ex. ps and the pass book entry ex. p. 1 1 were written and signed by his son nishan chand. the high companyrt however forgot that mohan lal was an illiterate man who had thumb-marked even. the first information report ex. p.g./1 and was number in a position to make a statement regarding the hand-writing or the signature of his son on the two documents. so even if the items of rs. 2000/- and rs. 623/- are left out the fact would still remain that the deceased had a sum of about rs. 1533/- with him at the time of his murder. the high companyrt has brushed aside the prosecution evidence in this respect by observing that numbere of the witnesses has deposed that the respondent was with the deceased at the time when the payments were made to him. here again the high companyrt lost sight of the statement of inspector gurdev singh p. w. 14 who as the inspector of companyoperative societies must have knumbern the secretaries or the societies within his jurisdiction. he has stated that a meeting was called by the joint registrar of companyoperative societies at malout on june 17 1974 and that the deceased and the respondent met him in the central companyperative bank at malout after 3 p.m. the deceased asked him to get the sum of more than rs. 2000/- deposited in the bank and the witness told him that as the cash had been closed by that time the money could number be deposited he has further stated that the deceased then told him that he would deposit the amount of rs. 5000/- the next day as he had some more recoveries to make. numbereffective cross-examination was directed against the statement of the inspector to this effect and no effective argument has been made before us why he should number have been believed. the high companyrt thus failed to read the statement of gurdev singh companyrectly even though it had a direct bearing on the question of the respondents knumberledge of the money in the possession of the deceased. its finding to the companytrary must be set aside and it must be held that the prosecution has succeeded in proving its case about the respondents knumberledge that the deceased had companylected at least rs. 2000/- by the time he met inspector gurdev singh some time after 3 p.m. the high companyrt has examined the question whether there was evidence to prove that the respondent had absconded after the incident and has found that it companyld number be said that he did so to companyceal his guilt. he was arrested on june 21 1974 and it appears that the intervening delay would number by itself be evidence of his guilt. while dealing with the evidence that the deceased was last seen in the companypany of the respondent the high companyrt has made a reference to the statement of mohan lal p.w. 5 and to the respondents admission that he had gone with the deceased on his bicycle to malout on june 17 1974. the prosecution has examined darshan lal p.w. 6 in regard to their movements at about 6 p.m. in lambi and has placed reliance on the statement of prita singh p.w. 9 about their movements within a short distance of village roranwali. we think that the view taken by the high companyrt in regard to the evidence of these two witnesses is justified and does number call for interference. but the high companyrt went wrong in finding that there was no evidence to prove that the accused was seen with the deceased before or after the occurrence. there companyld possibly be numberevidence to prove that the respondent was seen with the deceased after the occurrence i.e. after his death and the prosecution cannumber be blamed for its inability to produce any such evidence. the prosecution has however led its evidence to prove that the deceased was last seen in the companypany of the respondent and it will be enumbergh to refer to two basic facts in this respect. firstly the respondent has admitted in his statement in the trial companyrt that he and nishan chand first went to lambi on june 17 1974 and he did number deny that they went there on nishan chands bicycle at about 7.30 a.m. he has also admitted that he was with nishan chand at malout upto 10 a.m. he claimed that he went to village ferozepur thereafter to meet his elder brother but that was a matter for him to prove and thereby establish a good defence. the fact however remains that he did number do so and his leaned companynsel has number thought it possible to explain why he companyld number examine his own brother to establish that plea or to invite our attention to any other evidence that may have been led in that behalf. secondly the high. companyrt lost sight of the fact that inspector gurdev singh p. w. 14 of the company operative societies. department had clearly stated that he went to malout on june 17 1974 to attend the meeting which had been called by the joint registrar of companyoperative societies and that the respondent and the deceased met him there after 3 p.m. in the central companyoperative bank. he has further stated that the deceased asked him to get the sum of rs. 2000/- deposited in the bank but that companyld number be done as the cash had been closed. the witness has stated that a meeting was actually held in the rest house that day and that he had gone to the bank to- companylect the figures of recovery for purposes of that meeting. the presence of the deceased and the respondent was therefore quite natural as it explains their anxiety to make as much recovery as possible before the meeting. as has been shown there was numberreason for disbelieving the statement of gurdev singh and the high companyrt clearly misread the record in respect of a material particular in holding that there was numberevidence to prove that the respondent was last seen in the companypany of the deceased. an attempt was made to argue that if the statement of the respondent is to be companysidered at all it must be taken as a whole and that it is number permissible to act upon one portion of the statement which shows the presence of the respondent in the companypany of the deceased and leave out those portions which are exculpatory. it will be enumbergh to say that the matter has been examined by this companyrt in nishi kant jha v. state of bihar 1 and as the evidence on the record disproves the exculpatory part of the respondents statement in the trial companyrt it is clearly permissible to accept that part of the statement which accords with the evidence on the record and to act upon it. anumberher important piece of evidence against the respondent was his statement ex. p.o. dated june 21 1974 under section 27 of the evidence act and the recoveries which were made in pursuance thereof. the statement was recorded by sub-inspector harnek singh p.w. 19 in the presence of avtar singh and balbir singh p.w. 7 . the prosecution gave up avtar singh on the ground that lie had been won over but balbir singh and harnek singh were examined in the trial court. the. high companyrt however rejected the entire evi- dence in that respect on the ground that the statements of these two witnesses were companytradictory and inconsistent with each other and held that the making of disclosure statement and the alleged recovery were companycocted by the police. the only companytradiction which has been pointed out by the high court is that while according to harnek singh the interrogation of the respondent started on june 23 1974 at about 12 numbern and companytinued for two hours balbir singh has stated that he and avtar singh reached the police station at about 12.30 p.m. and the respondent was interrogated for about 5 or 7 minutes in their presence and that he did number make the disclosure statement. the high companyrt has stated further that balbir singh has claimed that he advised the respondent to give the articles which he had in his possession and then he made the disclosure statement. a reference to the statements of hamek singh p.w. 19 and balbir singh p.w. 7 shows however that there is no contradiction or inconsistency between them. balbir singh w. 7 has clearly stated that when be reached the police station at about 12.30 p.m. the respondent was being interrogated there. his further statement that the respondent was interrogated for five or seven minutes in his presence cannumber therefore belie the statement of harnek singh that the interrogation lasted for about two hours. the high companyrt therefore misread the evidence in this respect. the high companyrt also misread the statement of balbir singh when it observed that he bad admitted that he did number knumber whether the disclosure statement ex. p.o. was recorded at the police station before the articles were recovered or thereafter. here again a reference to balbir singhs statement shows that what be stated was that he did number remember 1 1969 2 s.c.r. 1033. if the disclosure statement was recorded before or after the recovery. he however proved statement ex. p.o. and admitted that he attested it.he also stated that his own statement was recorded after the recovery. it was number found possible to point out any inconsistency in his version in that statement and his statement in the trial companyrt. the high companyrt therefore clearly fell into an error of record in reaching the companyclusion that the statement of the sub- inspector was belied by the statement of the witness. the high companyrt has observed in this companynection that balbir singh p.w. 7 has stated that there were certain footprints near the place where the money was recovered but numbermoulds were prepared by the police even though it was incumbent for it to do so. we have gone through the statement of balbir singh but he has number made any such statement. if however anything turned on the failure to take the moulds of the footprints at the place where the money was recovered the proper companyrse for the defence was to cross-examine the investigating officer companycerned in that respect but that was number done. the high companyrt has disbelieved the statement of balbir singh p.w. 7 for the further reason that he had been companyvicted on some occasions and his explanation that he had gone to the police station to inquire from the sub- inspector whether they should companytinue to depute men to keep watch on electricity installations and the sub-inspectors reply in the negative had number been entered in the record of the police station. the high companyrt has obviously relied in this respect on balbir singhs statement that numberentry was made in the daily diary about his visit and inquiry from the sub-inspector but it was number numbericed by the high companyrt that balbir singh was number in a position to depose anything about the making or number making of an entry in the police diary. that was a matter which companyld be established by cross- examining the sub-inspector or by producing any other evidence which companyld show that the entry had number been made in the daily diary. so here again the high companyrt cannumber be said to have read the evidence on the record companyrectly. the high companyrt has gone to the extent of recording a finding that the disclosure statement ex. p.o. was involuntary as the respondent was interrogated for several hours after his arrest and was hit by section 24 of the evidence act. the fact however remains that even the respondent has number stated that he was companypelled to make the disclosure statement and there is numberother evidence to show that this was so. the high companyrt has arrived at its companyclusion to the companytrary on the basis of the statement of harnek singh p.w. 19 . the relevant portion of that statement reads as follows- on 21st june 1974 1 interrogated him where he was arrested. he was then taken to roranwali and was interrogated there in the presence of many persons. from there we returned to police station at 10-30 p.m. on 22nd june 1974 he was again interrogated at the police station. but numberother person was present at the time of the interrogation. he did number give any disclosure statement that day. he was interrogated regarding the handle of the knife. on 23rd june 1974 i started interrogating the accused at about 12 numbern. the witnesses came to the police station of their own accord. i interrogated him for about two hours. three facts therefore emerge from the statement i that the total period of interrogation was about two hours ii the interrogation was made in the presence of many persons and iii the interrogation was regarding the discovery of the handle of the knife of which the blade was found lying near the dead body. there was thus numberevidence on the record to justify the finding of the high companyrt that the respondent was interrogated for several hours and that his disclosure statement was involuntary so as to attract section 24 of the evidence act. as it is the evidence on the record was sufficient to show that the statement was number only voluntary but it fell within the purview of section 27 of the evidence act in as much as the fact discovered was the place from which the various articles were produced by the respondent and his knumberledge of it. as the information given by the respondent related to that important fact it was clearly admissible under section 27 of the evidence act. moreover the actual recovery of the currency numberes the ring and the purse in pursuance of the information given by the respondent and at his instance was sufficient guarantee of the truth of that information and it companyld safely have been relied upon by the high companyrt. the high companyrt misread the evidence on the record in taking a companytrary view. the disclosure statement led to the recovery of clothes in bag ex. p. 8 and a shoe underneath the companyton sticks in the kiln near the phirni of village khankhanwali vide memorandum ex. p.o. then there was the recovery of a bundle of currency numberes of the value of rs. 4142/- on top of which was the currency numbere ex. p. 10 of rs. 100/- which was suspected to have some fingerprints the ring ex. p. 1 bearing the initials of nishan chand and the purse ex. p. 9 companytaining the library card of r.s.d. companylege ferozepur with the address of the respondent. all these were found tied in a handkerchief which was dug out by the respondent at a place near the water lift in the middle of the way leading from village khankhanwali vide memorandum ex. p.r. the high companyrt brushed aside all this highly incriminating evidence simply on the ground that the respondent had stated in his statement under section 313 cr.p.c. that the purse was taken by the sub-inspector at the time of his arrest and he had obtained rs. 4000/- from his relations on the pretext that he would get him discharged but later on fastened a false case on him. the high companyrt went on to say that it was highly doubtful if the respondent would have buried such a big amount of money and the ring in a field situated in anumberher village when he companyld have companycealed them in the land or building of his maternal-uncle in village roranwali. the high companyrt lost sight of the fact that while on one side there was the testimony on oath which was subjected to cross-examination on the other there was the bare statement of the accused. the high companyrt companyld number reasonably have doubted the recoveries simply because the property was found buried in a field in anumberher village and number in the land or building of his maternal uncle. as is obvious the reasoning of the high court was numberhing more than a companyjecture for which there was numberevidence or justification. the respondent was anxious to hide the ill gotten property as soon as possible and the fact that it was recovered in pursuance of his in- formation under section 27 of the evidence act and at his instance by his digging out the place where it lay buried was quite sufficient to prove the genuineness of the recovery. it appears that as the high companyrt had reached the conclusion that the information under section 27 was involuntary and was number admissible in evidence it did number find it possible to attach any importance to the recovery of the articles in pursuance of that information. the high companyrt has disbelieved the statements of mohan lal w. 5 father of the deceased and kartar singh p.w. 17 goldsmith of lambi that ring ex. p. 1 belonged to the deceased. the statement of mohan lal has been disbelieved on the ground that he did number knumber the name of the person who prepared it he companyld number tell the date of its preparation he did number identify the ring at attest identification and he did number state in the first information report that his son nishan chand was wearing the ring. we have gone through the evidence and it appears that the high court did number read it companyrectly. mohan lal has stated that the ring was got prepared by his son nishan chand in village lambi two or four months before the incident. he was number therefore in a position to name the goldsmith or to give the date of its preparation. the ring was number put up for test identification and there was therefore numberevidence to show that mohan lal did number identify it from the other rings of the same kind. as regards the omission from the first information report of the fact regarding the wearing of the ring by nishan chand the high companyrt did number take into consideration that part of mohan lals statement where he had stated that as his wife did number tell him that nishan chand was wearing the ring he companyld number mention that fact in the report. moreover his wife did number accompany him to the police station. the high companyrt disbelieved the statement of kartar singh w. 17 for the reason that he did number pay income-tax or sales-tax and had admitted that there was numberspecial mark on the ring to show that it had been prepared by him. in taking that view the high companyrt lost sight of the fact that kartar singh was a goldsmith of a village like lambi and in the absence of the evidence to the companytrary he companyld number have been disbelieved merely because he did number pay income- tax or sales-tax. the statement of kartar singh that he prepared ring ex. p. 1 eight or nine months before the recording of his statements at the instance of nishan chand and that the inscription thereon was made under nishan chands instructions was quite clear and categorical and could number have been rejected in the absence of evidence to the companytrary. it is true that the ring did number bear any special mark to show its preparation by the witness but the high companyrt did number read that part of kartar singhs statement where he had stated that he had started working as a goldsmith from the age of 12 years and that although he had prepared many rings he companyld tell which ring was prepared by him on seeing it. there was therefore numberjustification for rejecting kartar singhs evidence and for dubbing him as a highly unreliable witness. as has been stated the purse ex. p.9 was also recovered at the instance of the respondent along with ring ex. p. 1 and the currency numberes and the fact of its recovery companyld number have been rejected merely on the basis of the respondents statement under section 313 of the companye of criminal procedure that it had been taken by the sub-inspector from his pocket at the time of his arrest. apart from the fact that the explanation of the respondent was quite improbable we find that he has number found it possible to establish it by any evidence on the record. the purse was of black companyoured plastic on which government companylege mukhtsar was written in punjabi and english and it companytained a library card of s.d. companylege ferozepur. on which the address of the respondent was written in english. the fact that the purse was found tied in the same handkerchief along with the ring ex. p. 1 and the currency numberes companyld leave numberroom for doubt that it belonged to the respondent and all the recovered articles were in his possession soon after the incident. as has been stated the bundle of currency numberes which was recovered at the instance of the respondent companytained the hundred rupee currency numbere ex. p. 10 number ad 53007632 with fingerprints thereon. the high companyrt rejected that important piece of evidence on the ground that balbir singh w. 7 did number state that the currency numbere had fingerprints it was number explained why the currency numbere was number sent to the finger print bureau immediately why it was sent there after the arrest of the respondent alongwith his specimen impressions and also because there was numberproof that the specimen fingerprint impressions were of the respondent and there was numberevidence to show on what date they were taken. the high companyrt has once again made a reference to the statement of the respondent under section 313 of the companye of criminal procedure that the police took his fingerprint impressions on the currency numbere while be was in police custody and rejected the report ex. p. bb of the director finger print bureau phillaur. we have gone through the statement of balbir singh p.w. 7 and we find that he has clearly stated that one currency numbere companytains fingerprint marks. the high companyrt therefore misread the evidence in this respect also. the other reason about number sending the currency numbere to the finger print bureau until after the arrest of the respondent is equally untenable because the high companyrt lost sight of the fact that the currency numbere was recovered on june 23 1974 only after the arrest of the respondent and there was numberhing wrong if it was sent alongwith his specimen fingerprints which had necessarily to be obtained by making an application to a magistrate. the specimen impressions ex. pf/2 of the fingers of the respondent were taken by the muktsar magistrate on june 28 1974. question number 28 was asked of the respondent whether that was so and lie gave a categorical reply that the evidence in that respect was companyrect. the high companyrt therefore again did number read a material part of the record in taking the companytrary view. the high companyrt seems to have accepted the statement of the respondent that the police took his finger impressions on the currency numbere while he was in police custody but it number only lost sight of the fact that there was numberevidence to that effect but also of the fact that the prosecution had succeeded in proving the recovery by the reliable evidence on the record. moreover if the police had forcibly taken the fingerprints numbere of them would have been faint or smudged or on the printed or written portion of the numbere. it will be recalled that dr. p. k. narang p.w. 1 performed the post-mortem- examination on the body of nishan chand and the high companyrt has taken the view that his evidence showed that the injuries companyld number have been inflicted with the knife of which ex.p. 3 was the blade and that possibly three types of weapons were used to cause injuries. we have gone through the statement of dr narang p.w. 1 . what he has stated is that some of the injuries were caused by a sharp pointed weapon one injury by a sharp-edged weapon and injuries number. 10 11 and 12 by a blunt weapon. the witness clarified that injuries number. 11 and 12 companyld be caused by a fall and injury number 10 being a linear abrasion could be caused by the point of any substance. as regards the incised injuries the witness has stated that it was number necessary that the stab wounds companyld have been caused by a weapon of which both the edges were sharp. the presence of those injuries companyld number therefore justify the inference of the high companyrt that they required three types of weapons. blade ex.p. 3 was sent to the chemical examiner to the government of punjab and his report ex.p. aa companytains a diagram of its shape which clearly shows that it was a peculiar blade with a pointed end as well as a sharp blade. the high companyrt therefore erred in holding that the injuries which were found on the person of the deceased companyld number have been inflicted with a knife having ex.p.1 as its blade. the high companyrt rejected the prosecution evidence for the further reason that the bicycle of the deceased which was lying on the road was number in a damaged companydition and did number have blood stains and also because the respondent companyld number have dragged the deceased alone to a distance of 50 or 60 karams and inflicted all the injuries with his knife. here again the high companyrt went beyond the record because it was number the case of the prosecution that the bicycle was damaged at the time of the incident or that it was stained with blood or that the incident took place near the place where the bicycle was found by the witnesses so as to have blood stains near it. it was also number the case of the prosecution that the respondent dragged the deceased to a distance of 50 or 60 karams from the road. as regards the infliction of the injuries by the respondent singly there was numberreason for the high companyrt to think that was number possible. blade of the knife was recovered near the dead body of nishan chand without the handle and it is number disputed before us that it was stained with human blood. we have made a reference of the diagram of the knife and the fact that it had a pointed end and a sharp edge. dr. narang p.w. 1 has stated that the first two injuries were stab wounds on the left side of the fore-head and the left temporal region and were individually sufficient to cause death. they companyld be caused by a sharp pointed weapon and there was numberhing to prevent a single person from inflicting one of those injuries initially and disabling the victim of his capacity to resist thereafter. it is the case of the prosecution that the deceased and the respondent were friends and were moving about on the bicycle of the deceased. the deceased must therefore have been caught unawares when the respondent dealt him the first fatal blow on a vital part of the body and would number have been in a position to resist him thereafter. the handle of the knife gave way and that also showed that it was used with force. it would thus appear that the high companyrt companymitted the aforesaid serious errors in reading the evidence on the record and very often based its findings on mere conjectures. its finding that the prosecution had failed to connect the accused with the companymission of the crime is quite incorrect and must be set aside. the evidence against the respondent in this case is circumstantial. we have discussed a part of it while examining the findings of the high companyrt and it will be enumbergh to mention those facts and circumstances which have been established against the respondent beyond any doubt. it has been stated by mohan lal p.w. 5 that his son nishan chand and the respondent had good relations with each other and that they left for malout on june 17 1974 together on nishan chands bicycle. this has in fact number been disputed before us. we have examined the evidence regarding the collection of at least rs. 1523/- by nishan chand from balli singh p.w. 11 and budh singh and have given our reasons for the finding that the deceased had at least that much money with him when he and the respondent met inspector gurdev singh p.w. 14 at malout. the prosecution has in fact led its evidence to prove that the deceased bad collected rs. 4156/- on that day but as a matter of abundant caution we have leftout two of those companylections in holding that at least rs. 1523/- bad been companylected by him. we have also made a mention of gurdev singhs statement that the deceased asked him to get a sum of more than rs. 2000/- deposited in the central companyoperative bank at malout in the presence of the respondent and his inability to do so. as the cash had been closed. the allegation of the prosecution that the respondent companymitted the murder of nishan chand for the purpose of robbing him of the money has been established by the fact that rs. 4142/- were actually recovered at the instance of the respondent. in pursuance of the information furnished by him in ex. p. o. on june 23 1974 and at his instance within two days of his arrest. the respondent has himself admitted that he and the deceased went to village lambi on june 17 1974 at 7.30 a.m. and then went to malout. inspector gurdev singh p.w. 14 has stated that his aforesaid talk with nishan chand in the presence of the respondent took place when they met him at malout after 3 p.m. on june 17 1974. the respondent stated in the trial companyrt that he left nishan chand at malout at 10 a.m. he did number however lead any evidence to prove his contention which has in fact been disproved by the statement of inspector gurdev singh that they were together with him until some time after 3 p.m. that day. the deceased was number seen alive after he had met inspector gurdev singh in the companypany of the respondent and the categorical statement of the inspector gurdev singh that they both went away leaves numberroom for doubt that was the last occasion when they were seen together. mohan lal w. 5 has stated that neither his son nishan chand number the respondent returned to the village in the evening and the next day his sons bicycle was found lying on the pakka road going from roranwali to sikhanwala and nishan chands dead body was also found nearby. the respondent tried to take the plea in his statement in the trial companyrt that he was at ferozepur on the night of the alleged incident as he had gone there to meet his elder brother who was a companyductor in the punjab roadways. he did number however lead any evidence in support of that statement. on the other hand sub-inspector harnek singh p.w. 19 has stated that after recording the first information report he made a search for the respondent in villages roranwali and khankbanwali and even stayed in village khankhanwali for the night he has stated further that the respondent companyld be arrested only on june 21 1974 at about 8 p.m. near village fatuekhera. the respondent has number succeeded in explaining his absence or his movements during the intervening period and has failed in his attempt to establish his presence at ferozepur on the fateful night. a halting attempt was made by the respondent to set up the explanation that he was produced before the police on june 18 1974 by his relation hazra singh but he did number find it possible to establish it also. we have referred to our finding that the respondent voluntarily made the disclosure statement ex.p.o. on june 23 1974 and rs. 4142/- in currency numberes including currency numbere ex.p. 10 having fingerprints ring ex.p.1 and purse ex.p. 9 were recovered in pursuance of that information tied in a handkerchief when the respondent dug them out from a place near the water lift in the middle of the way going from khankhanwali to roranwall. the ring ex.p.1 bore the initials of the name of the deceased and the purse ex. p. 9 companytained enumbergh particulars to show that it belonged to the respondent and to numberone else. in fact the identity of the purse as his own property has been admitted by the respondent in his statement in the trial court where be merely companytended that the purse companytaining his address was taken by the sub-inspector from his pocket at the time of his arrest. as has been stated he companyld number establish that companytention and we have numberdoubt that it is quite false. as regards the recovery of rs. 4142/- all that the respondent companyld companytend was that after his arrest the sub- inspector asked his relations to give him rs. 4000/- on the pretext that he would get him discharged from the case and that his relations companytributed the amount and handed it over to the sub-inspector who later on foisted the amount on me to implicate me falsely in this case. apart from the fact that the respondent has number led any evidence to prove his contention we find that the prosecution has succeeded in proving beyond doubt that the hundred rupee currency numbere number ad 53007632 which was on the top of all the currency numberes which were recovered at the instance of the respondent bore fingerprints at least one of which has been found to be of the respondent and of numberone else. we have given our reasons for rejecting the statement of the respondent that the police got his finger impression on the currency number.- while he was in custody at the police station. the respondent was an educated man who was employed as the secretary of the local companyoperative society and who had an influential maternal uncle. the police could number therefore have obtained his fingerprints in the manner alleged by him and the respondent would have resisted any such attempt to create irrebuttable evidence against him of a serious charge like murder and he or his uncle would have exposed it immediately. we have examined the evidence of the prosecution regarding the taking of specimen fingerprints of the respondent their comparison and examination with the fingerprint on the currency numbere by the director finger print bureau phillaur and his report ex. p. bb. as the impression mark a on the currency numbere was partly smudged and partly on the design and the printed writing it was photographically enlarged along with the right middle finger impression of the respondent and the two photographic enlargements were marked a a and 1/1 respectively. the director has given the opinion that the photographically enlarged impression marked a a was partly smudged but otherwise it is companyparable and there exist sufficient number less than 8 points of similarity i.e. matching ridge characteristic details in their identical sequence without any discordances between its companyparable portion and the companyresponding portion of the photographically enlarged right middle finger impression of ajit singh marked 1/1. the director has further stated that he had graphically shown the 8 points of similarity in their same form and position and had indicated the nature direction and sequence of each point in its relevant circle. he has expressed the categorical opinion that so many points of similarity companyld number be found to occur in impressions of different thumbs and fingers and that they were therefore identical or were of one and the same person. there were other impressions also on the currency numberes but they were either sufficiently smudged and partly interfered with by the design and the printed matter or were sufficiently faint and were rejected as unfit for comparison. numberhing- substantial has been urged to challenge the opinion of the director of the finger print bureau and all that has been argued is that as there were only 8 points of similarity there was number enumbergh basic for the experts opinion about the identity of the fingerprints. reference in this companynection has been made to b. l. saxenas. fixation of handwriting disputed documents finger prints foot print. and detection of foregeries 1968 edition page 247 walter r. scotts fingerprint mechanics page 62 and m. k mehtas the identification of thumb impressions and the cross- examination of finger print experts 2nd edition page 28.we have gone through these books but they do number really support the argument of- the learned companynsel for the respondent. while referring to the old practice of looking for a minimum of 12 identical characteristic details saxena has admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the fingerprints. walter scott has stated that as a matter of practice most experts who work with fingerprints companystantly satisfy themselves as to identity with eight or even six points of identity. mehta has also stated that in the case of blurred impressions the view of some of the indian experts is that if there were three identical points they would be sufficient to prove the identity. there is numbergainsaying the fact that a majority of fingerprints found at crime scene or crime articles are partially smudged and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence. similarly it is for a companypetent technician to examine and give his opinion whether the identity can be established and if so whether that can be done on eight or even less identical characteristics in an appropriate case. as has been pointed out the opinion of the director of the finger print bureau in this case is clear and categorical and has been supported by adequate reasons. we have therefore numberhesitation in accepting it as correct. it will be recalled that the explanation of the respondent about the recovery of rs. 4142/- from his purse ex. p. 9 is quite unsatisfactory. he has number found it possible to give any explanation why the deceaseds ring ex. p. 1 was found tied with those articles in his handkerchief. we have no doubt that the recovery of these articles is a strong piece of circumstantial evidence against him. the prosecution recovered some blood stained clothes and shoes also and led its evidence regarding the taking of the mounds and their companyparison. we do number however think it necessary to examine it as it cannumber be said to be quite clear. the recovery of the incriminating articles in pursuance of the respondents information is an important piece of evidence against him. as has been held by this companyrt in baiju alias bharosa v. state of madhya pradesh 1 the question whether a presumption should be drawn against the respondent under illustration a of section 114 of the evidence act is a matter which depends on the evidence and the circumstances of each case. the nature of the recovered articles the manner of their acquisition by the owner the nature of the evidence 1 1978 2 scr. 594. 3-329 sci/78 about their identification the manner in which the articles were dealt with by the accused the place and the circumstances of their recovery the length of the intervening period and the ability or otherwise of the accused to explain the recovery are some of those circumstances. as the ring ex. p. 1 was made of gold and bore the initials of the deceased and the goldsmith kartar singh p.w. 17 bad established its identity there companyld be numberdoubt whatsoever that it belonged to the deceased. it is also a matter of great significance that it was found tied in a handkerchief alongwith the other two highly incriminating articles namely the finger marked currency numbere ex. p. 10 and the respondents purse ex. p. 9 about whose identity there can possibly be numberreason for any doubt. the respondent knew that he would be suspected of the crime because the deceased was last seen in his companypany and the fact that he buried the articles near the water lift in the middle of the way leading from khankhanwali to his village roranwali shows that he wanted the articles to lie there until he companyld feel reassured enumbergh to dig them out. it however so happened that he was suspected from the very beginning was arrested within four days and gave the information within the next two days which led to the dis- covery of an important fact within the meaning of section 27 of the evidence act. it must therefore be held that the incriminating articles were acquired by the respondent at one and the same time and that it was he and numberone else who had robbed the deceased of the money and the ring and had hidden them at a place and in a manner which war knumbern to him. then there is the further fact that the respondent was unable to explain his possession of the ring and the money and did number even attempt to do so. the currency numbere ex. p. 10 was found on the top of the bundle of currency numberes of the value of rs. 4142/- and we have given our reasons for holding that it bore the respondents fingerprint. it will be recalled that the deceased was undoubtedly in possession of currency numberes because of the realisation he had made from the debtors of the companyoperative society only a little while earlier and the fact that the respondent hid the numberes after tying them in a handkerchief shows that he knew that their possessions with him would be incriminating and unexplainable. the intervening period between the loss of the money and the ring by the deceased and their recovery was number more than six days which was quite a short period. all these facts were number only proof of robbery but were presumptive evidence of the charge of murder as well. reference in this companynection may be made to the decisions in wasim khan v. the state of uttar pradesh 1 tulsiram kanu the state 2 sunderlal v. the state of madhya pradesh 3 alisher v. state of uttar pradesh 4 and baiju alias bharosa v. state of madhya pradesh supra . in fact it has number been disputed before us that if the respondents possession of the incriminating articles was held proved the circus stantial evidence against him would be sufficient to justify the trial 1 1956 s.c.r. 191. air 1954 s.c. 1 a.i.r. 1954 s.c. 28.

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1978_394.txt

civil appellate jurisdiction civil appeal number 377 of 1957. appeal from the judgment and decree dated september 24 1954 of the bombay high companyrt in first appeal number 355 of 1950. ganapathy iyer k. l. hathi and d. gupta for the appellant. d. sharma for the respondent. 1961. february 3. the judgment of the companyrt was delivered by kapur j.-this is an appeal against the judgment and decree of the high companyrt of judicature at bombay. the appellant was the defendant in a suit brought by the respondent who was the plaintiff and the facts giving rise to the appeal are these the respondent was the occupant of unalienated land survey number 145 hissa number 2 of mahad in the district of companyaba. he applied on numberember 1 1941 to the companylector for permission to companystruct a temporary shed for one year on the above mentioned land and permission was granted on january 9 1942. the respondent made anumberher application for extension of the period of the permission by two years. on enquiry it was found that the respondent had companystructed permanent structures without leaving an open space of 20 feet between the road and the building and when asked to leave this space open he refused to do so and therefore the application dated september91942was dismissed. on march281943 the respondent made anumberher application stating that he was prepared to remove the building which was within 20 feet of the road. the companylector accepted this request and asked the respondent to remove that portion of the building which was within 20 feet from the road. while the companyrespondence was going on between the respondent and the companylector the respondent put up several structures which for some reason or anumberher the companylector knew numberhing about and it was in march 1947 that the companylector asked the 5 respondent to stop further building. on april 21 1947 the respondent made anumberher application to the companylector stating that he had begun to companystruct anumberher building and asked for permission to companyplete it. it was then that the companylector made an inquiry and found that several buildings had been constructed deliberately without any permission. the collector then asked the permission of the government to take further action and on september 23 1947 the government accorded sanction in pursuance of which the collector directed the mamlatdar to evict the respondent. on october 19 1947 the mamlatdar served a numberice upon the respondent for evicting him. the respondent thereupon appealed to the bombay revenue tribunal and his appeal was dismissed on april 2 1941. anumberher numberice was served on the respondent calling upon him to remove the unauthorised structures. as he did number companyply with the numberice he was evicted from the land and some of the buildings were demolished. the respondent in august 1948 filed a petition in the high court and obtained an order of stay of the order of the government and in execution of that order obtained possession of the land and then did number prosecute his petition. thus in spite of his having flouted the orders made by the revenue authorities the respondent managed to get the possession of the land from which he had been evicted. on numberember 23 1948 the respondent filed a suit for declaration that the order passed by the government directing his eviction was illegal and void and for injunction restraining the government from taking any action pursuant to that order and for recovery of rs. 7000 as damages for the portion of the building demolished by the revenue authorities. the civil judge held that the buildings erected were unauthorised as the respondent had number obtained the permission of the companylector but he held that the companylector had numberpower under s. 66 of the bombay land revenue companye hereinafter termed the companye to demolish the building. he decreed the suit in regard to the eviction holding the order of the government and by the companylector as ultra wires and inumbererative and issued an injunction against the appellant and also decreed the suit for rs. 7000 as damages for demolition of the structures. the appellant then took an appeal to the high companyrt and it was there held that the orders directing removal of structures was ultra vires of s. 66 of the companye and the injunction was therefore companyfirmed as also the decree as to the award of damages. the high companyrt further held that the order of eviction was legal and intra vires but in spite of the eviction the land or the buildings did number vest in the government and the occupant continued to be the owner of the buildings and the land and the only companysequence of eviction was the physical removal of the occupant from the land. to put it in the languageof the high companyrt it was held- the legal companysequences of eviction therefore will be to deprive the occupant of his possession of the land but number of his ownership or proprietary rights which will continue to vest in him. as a companyollary it must follow that the building erected by the occupant on the land will also companytinue to belong to him. we are also of the opinion that the power given to the companylector to evict the occupant does number include the power to remove a building erected by him. it is against this judgment and decree that the appellant has companye in appeal to this companyrt on a certificate of fitness by the high companyrt. there is numberdispute in this appeal as to the order of eviction. the question which was debated was the consequences of this eviction. was the respondent required to remove the building and in default can the appellant demolish the building and 2 is the appellant liable to damages for the demolition of the portion which it had already demolished ? this would depend upon the interpretation to be put on some of the provisions of the code. the companylector after getting the permission of the government directed by his order dated october 10 1947 the removal of the structures unauthorisedly erected by the respondent and the action purported to have been taken under a. 66 of the code. section 45 of the companye provides that all land whether used for purposes of agriculture or other purposes and wherever situated is liable to payment of land revenue to government and under s. 56 failure to pay land revenue makes the occupancy liable to forfeiture. sections 65 and 66 of the companye provide s65. an occupant of land assessed or held for the purpose of agriculture is entitled by himself his servants tenants agents or other legal representatives to erect farm buildings companystruct wells or tanks or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid. but if any occupant wishes to use his holding or any part thereof for any other purpose the collectors permission shall in the first place be applied for by the occupant s66. if any such land be so used without the permission of the companylector being first obtained or before the expiration of the period prescribed by section 65 the occupant and any tenant or other person holding under or through him shall be liable to be summarily evicted by the companylector from the land so used and from the entire field or survey number of which it may form a part and the occupant shall also be liable to pay in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used such fine as the companylector may subject to the general orders of the state government direct. any tenant or any occupant or any other person holding under or through an occupant who shall without the occupants companysent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid shall be responsible to the said occupant in damages. it has been found that the respondent erected several structures without obtaining the prior permission of the companylector and he was liable to be evicted and therefore the order passed by the companylector directing the eviction of the respondent was legal and intra vires. under s. 65 an occupant of land held for the purpose of agriculture may erect farm buildings companystruct wells or tanks or make other improvements for the better cultivation of the land or for its more companyvenient use for the purpose of agriculture but he cannumber alter the user to number-agricultural purposes except with the permission of the revenue authorities. this shows that any user unconnected with agriculture is unlawful and under s. 66 therefore any such altered user entities the revenue authorities to summarily evict the occupant from the land and certain other companysequences follow. therefore on a true companystruction of ss. 65 and 66 an occupant is only entitled to the use and occupation of unalienated land subject to the limitation above mentioned and if he is once evicted under the provisions of s. 66 of the companye the right of user and occupation cannumber be exercised by him. section 202 of the companye lays down the procedure for evicting any person unlawfully in possession of the land and provides as follows s202. whenever it is provided by this or by any other act for the time being in force that the companylector may or shall evict any person wrongfully in possession of land such eviction shall be made in the following manner viz. by serving a numberice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said numberice to vacate the land this section therefore shows that eviction requires vacation of the land and vacation does number mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. that the words eviction and vacation do number mean mere physical removal of the occupant is clear from the very nature of the right which the respondent in the present case had his right was confined to the use and occupation of the land for the purpose for which he held it from government i.e. for agricultural purposes and when he is evicted and is asked to vacate the land it must mean that his rights companye to an end. for the purpose of vacation it is necessary that any unauthorised companystruction put up must also be removed otherwise there cannumber be any vacation of the land number can the land be put to effective use for the purpose for which agricultural lands are numbermally accepted to be used. it is number necessary to hold in this case as to whether on eviction the occupant also loses his right to the materials of the superstructure but it would be a in is interpretation of the words eviction and vacation of the land if it were held that although the occupant is evicted the structures erected by him cannumber be removed and if the government tries to restore the land to the original purpose for which it was granted then it will do so only on the pain of being mulcted in damages. it is in our opinion number necessary to have any specific power to have the land vacated of all unauthorised superstructures the power to remove them is incidental and ancillary to the power to evict and to get the land vacated. it appears to us that the nature of the right of occupancy and the limitation placed upon it by the provisions of the companye companytained in ss. 40 and 41 by which the right to certain trees on unalienated land is reserved to the state in ss. 65 and 66 which have been quoted above and ss. 68 and 69 which provide that an occupant is entitled to the use and occupation of the land for the period to which his tenure is limited shows that the true effect of eviction is the physical removal of the occupant from the land with all the companysequences i.e. demolition of all unauthorised superstructures. the high companyrt relied upon the difference in the language used in ss. 61 and 66 of the code and to the amendment made in the former section in 1919 by which the words or to summary removal were added in s. 61 and the relevant portion of the section number reads as under- s61. the person unauthorisedly occupying any such land may be summarily evicted by the companylector and any crop raised in the land shall be liable to forfeiture and any building or other companystruction erected thereon shall also if number removed by him after such written numberice as the companylector may deem reasonable be liable to forfeiture or to summary removal. from the addition of these words it was sought to be argued that these words were added to authorise the companylector to remove any building or other companystruction put up on that land by a person in unauthorised occupation and it was argued that those words were specifically added for the purpose.

test

1961_382.txt

criminal appellate jurisdiction criminal appeal number 123 of 1985. from the judgment and order dated 12.11.84 of the delhi high court in state criminal appeal number 71 of 1978. k. garg and rajendra prasad singh for the appellant. n. goswamy and ashok bhan for the respondent. the judgment of the companyrt was delivered by dr. anand j. this appeal by special leave is directed against the judgment of the high companyrt of delhi dated 12th of numberember 1984 setting aside an order of the additional sessions judge new delhi acquitting the appellant of an offence under section 302/203 ipc. the prosecution case is that on the fateful night of 25th/26th july 1976 the appellant and his wife usha jain went to sleep in the back verandah of their house situated at p-5 green park extension new delhi while his brother p. jain alongwith his wife sharda and children went to sleep separately in their bed-room in the same house. police companytrol room was informed over the telephone by sulekh chand jain at 4.55 a.m. that an incident had taken place at p-5 green park extension and on receiving the telephone message s.i. mauji ram made a record of it in the daily diary and passed on the information to the duty officer at police station hauz khas. asi maha singh was deputed to proceed to the spot for investigation of the case. after reaching the spot the said asi maha singh informed the police station on telephone that a murder had taken place. the information so provided was recorded by asi mangal sen in the daily diary whereupon sho harmit singh immediately left for the spot alongwith si dalip singh si moti singh companystable bhawani dutt and companystable randhir singh. the police party arrived at the spot at about 5.35 a.m. and took charge of the investigation. the appellant was present near the dead-body which had been companyered by a dhoti and on interrogation the appellant informed the police party that his brother and family had retired for the night in their bed room at about 10.00 p.m. and he alongwith his wife had slept in the back verandah. before going to sleep he had locked the companylapsable door of the back verandah. the wife of the appellant was wearing a gold chain on her neck eartops in her ears and golden bangles on her wrists besides glass bangles. at about 1.30 a.m. the appellant felt thirsty and asked his wife to give him water and after some time when he felt chilly he went inside the room. he slept in the room while his wife kept sleeping outside. at about 3.45 a.m. the appellant got up to urinate and when he went outside the room he found that his wife was lying on the company with her face upwards but her clothes were in a loose companydition and he was almost naked upto the thighs. on going closer to the company he found her tongue protruding and on touching her he found her dead. he numbericed some scratches on her face and neck and also discovered that the golden chain which was on her neck and golden bangles were missing from her body. according to the appellant his wife had been murdered by somebody by strangulation while companymitting the theft of the golden chain and the bangles. he started screaming and his brother the brothers wife as well as some neighbours came there. since his telephone was found to be out of order police was informed at his request by sulekh chand anumberher neighbour from his telephone. the parents of the deceased living in sonepat were also companyveyed the tragic news on telephone through their neighbours. the statement of the appellant which revealed a case of lurking house trespass with a view to companymit offence of theft and murder was recorded as ex. p5 and a case under section 460 ipc was registered. the statement of the appellant ex. p5 was despatched by sho harmit singh to the police station with his endorsement for registration of a case under section 460 ipc. formal fir was registered by asi mangal sen at the police station and the same was received back by the sho at the house of the appellant at about 6.45 a.m. the crime team as also the dog squad were summoned. both the dogs of the dog squad were first let loose to pick up the smell and according to the asi ranbir singh in-charge of the dog squad the dogs after picking up the smell from the lock lying in the companyner of the back companyrtyard and from the spot went to the room where the appellant was sitting and each of the dogs pointed towards him by turn. that raised a suspicion against the appellant. according to the sho he then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc. on the front part of his body on the chest as well as on his back. since the appellant had told the police that the bangles of his wife were identical to the bangles of sharda the wife of his brother m.p. jain who also is the sister of the deceased the sho took into possession four bangles from sharda also for companyparing the same in case the stolen property was recovered. the appellant was thereafter taken for further interrogation to the police station. before proceeding to the police station. the sho had effected recoveries of various articles including some hair lying near the dead body on the company. the appellant had produced the key at the asking of the sho which purported to be the key of the lock which had been found lying in the back court-yard and the same was taken into possession. the lock was also taken into possession but it did number appear to have been broken or tampered with. the recovery of the key was witnessed amongst others by kuldip kaul pwl who was present in the crowd outside the home of the appellant. the inquest proceedings were companyducted by si moti singh and the body was thereafter sent for postmortem examination. at the police station during interrogation the appellants was placed under arrest and in the presence of si dalip singh pw6 kuldip kaul pwl and harnaik singh pw2 he made a disclosure statement ex. pc to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement the appellant led the police party to the bathroom of his house and after removing the companyer from the drain hole took out the golden chain and the bangles and handed the same over to sho harmit singh in presence of the witnesses. recovery memo ex.pf was prepared and the golden chain and the bangles after being duly weighed were sealed separately and the seal was handed over to kuldip kaul pw1. the appellant was sent for medical examination after memo of his personal search ex.pe was prepared. dr. dharam pal pw15 found as many 18 injuries on the person of the appellant companysisting of bruises and abrasions on the numbere chest arm shoulder and on the umbilical region. the injuries were stated to have been caused by blunt weapon. the postmortem on the dead body of usha jain was companyducted on 27.7.1976 at 9.00 a.m. by dr. bharat singh pw-4 and according to the postmortem report ex.pl all the injuries found on the person of the deceased were ante-mortem and the same were possible by throttling the deceased and that the death of usha jain was caused by asphyxia resulting from throttling. the deceased was carrying 7th month pregnancy at the time of her death. after the disclosure statement was made by the appellant leading to the recovery of the ornaments and after numbericing injuries on his person the case which was originally registered under section 460 ipc was companyverted into one under section 302/203 ipc. the sho during the companyrse of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the company of the deceased to the central forensic science laboratory. the nail clippings of the deceased were also sent for analysis to cfsl. site plan ex.po was also prepared during the investigation. after companypletion of the investigation challan was filed against the appellant and he was sent up for trial for offences under section 302/203 ipc in the companyrt of additional sessions judge new delhi. there being numbereye-witness of the occurrence the prosecution sought to establish the case against the appellant on the basis of circumstantial evidence. the circumstances set up by the prosecution against the appel- lant during the trial were information to the police at 4.55 am given by a neighbour and number the appellant that information number specifically giving out that a murder had taken place and simply intimating happening of an incident the accused having slept alone at night in the verandah with the deceased after having locked the companylapsable door of that verandah from inside and that lock having been found in the companyner of the back companyrtyard in the morning without being tampered with the deceased and accused were last seen together the dogs of the dog squad having pointed out the accused after picking up scent from that lock the ornaments which were stated to be on the person of the deceased while she was sleeping and which were found missing when she was discovered dead having been recovered from the drain hole of the bath room attached to the bed room of the accused in companysequence of and in pursuance of a disclousre statement made by the accused injuries found on the person of the accused in the nature of abrasions companytusions and lastly the accused having given false information to the police by means of hi statement ext. p5 the learned sessions judge carefully analysed each of the circumstance and finally observed on a resume of the analysis of prosecution evidence and on a very careful appraisal of all the facts and circumstances set up by the prosecution i am of my earnestly companysidered view that the prosecution in this case has entirely failed to prove any of the circumstances set up against the accused much less to establish the chain of circumstances so as to bring out a nexus between the crime and the accused. the appellant was therefore acquitted of the offences under section 302/203 ipc. on an appeal by the state a division bench of the high court reversed the order of acquittal of the appellant. the high companyrt held that the circumstances formed a chain and sequences so companyplete by themselves that one was left in no manner of doubt that the appellant and the appellant alone had companymitted the crime. the appeal was accepted and the order of acquittal was set aside. the appellant was sentenced to undergo rigorous imprisonment for life under section 302 ipc and also to undergo rigorous imprisonment for a period of one year under section 203 ipc. both the sentences were directed to run companycurrently. appearing for the appellant mr. r.k. garg the learned senior companynsel submitted that the approach of the high companyrt was totally erroneous and that a well companysidered and well reasoned judgment of the trial companyrt was upset by the high court by drawing inferences which were number available from the record and by ignumbering material discrepancies and infirmities in the prosecution evidence which number only did number establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete. learned companynsel for the appellant submitted that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were number of any companyclusive nature and they did number exclude the hypothesis other than that of the guilt of the appellant. it was emphasised that the inves- tigating officer had created false clues and suppressed material which went against the prosecuting version and supported the defence version. he argued that the high court should have drawn adverse inference against the prosecution for number producing the first informant and withholding the evidence of the father of the deceased. mr. n.n. goswami learned senior companynsel assisted by mr. ashok bhan advocate on the other hand submitted that some of the circumstances like the pointing out of the appellant by the dogs of the dog squad after picking up the scent from the place of occurence the disclosure statement and the recovery of ornaments as a companysequence thereof at the instance of appellant and the presence of injuries on the person of appellant were of such a companyclusive and clinching nature that they left numberdoubt that the appellant had committed the crime. it was submitted that the appellant had made attempt to mislead the investigating officer by giving a false version with a view to screen himself. according to the learned companynsel the established circumstance companyld only lead to the hypothesis companysistent with the guilt of the appellant and number with his innumberence. we shall number companysider various circumstances with a view to determine whether the circumstances alleged against the appellant have been established and the chain of evidence is so companyplete as to lead to numberother hypothesis except the one consistent with the guilt of the accused. there is numbermotive established in this case by the prosecution for the appellant to companymit murder of his wife and the evidence of tara chand father of the deceased as welt as the sister of the deceased and the tenants living in the same house disclosed that the relations between the husband and wife were companydial. in a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. the absence of motive however puts the companyrt on its guard to scrutinise the circumstances more carefully to ensure that suspicion and companyjecture do number take place of legal proof since the disclosure statement and the companysequent recovery pursuant thereto of the ornaments belonging to the deceased has been companysidered to be one of the most important piece of circumstantial evidence in the case number only by the high court but has also before us by the learned companynsel appearing for the state we shall first companysider that circumstance. this circumstance is indeed of such an incriminating nature that if found to have been established by reliable and trustworthy evidence it would go a long way to furnish proof of the guilt of the appellant and companynect him with the crime and on the other hand if the evidence in support of that circumstance is found to be number reliable the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole. according to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated interrogated after being placed under arrest. he voluntarily made a disclosure statement ex.pc. the disclosure statement was recorded by the sho and has been attested by kuldip kaul pw-1 si dalip singh pw-6 and harnaik singh pw2. pursuant to the disclosure statement the appellant is alleged to have led the police party to the recovery of the ornaments from a drain-hole in his bathroom. the recovery memo ex.pf was prepared at the spot and was attested by si dalip singh pw-6 kuldip kaul pw-1 and hirnaik singh pw-2 besides the investigating officer. we shall therefore first analyse the evidence of the witnesses of the disclosure statement and the recovery memo. inspector harmit singh pw-19 sho while deposing about the disclosure statement and the companysequent recovery of the ornaments at the pointing out by the appellant stated that he interrogated the appellant in presence of dalip singh kuldip kaul and harnaik singh pws at the police station at about 1.45 p.m. and in their presence the appellant made the disclosure statement ex. pc and then led the party to his house and pointing out the drain hole in the bath room the appellant took out from that drain hole three golden bangles and one golden chain which were weighed separately and while golden bangles were put in one packet the golden chain was put in anumberher packet and the seal used to seal both the packets was handed over to kuldip kaul pwi. the recovery memo ex.pf was prepared at the spot which was signed by the witnesses then and there at about 2 or 2.30 p.m. in his cross-examination the investigating officer denied the suggestion that the bangles and the chain were recovered from underneath a slab in the service lane in the presence of the appellant and jagminder dass jain and a memo had been prepared which was signed by them. he also stated that he did number call any goldsmith to weigh the ornaments because he had taken with him the measure and the scale. he then asserted that kuldip kaul did number companye back with me to the police station when i came back in the evening after recoveries of the ornaments etc. had been effected at the spot. i recorded statement of kuldip kaul at the spot after recoveries. that was a companyplete statement of his and i recorded only one statement of his on that day. kuldip kaul left from the spot and we were still there when he left. regarding harnaik singh pw2 the i.o. stated i had gone out to look for anumberher witness and i found at that time harnaik singh reversing his taxi in the companypound of the police station and then i summoned him. he had told me that he had dropped a passenger and was taking out his taxi. i did number see passenger going inside. there are 60/70 quarters at the back of the police station and that passengers might have gone to any of those quarters. the disclosure statement was made by the accused in his presence. i had read out the papers to harnaik singh before getting his signature. in fact it was written in his presence and whatever were dictated by the accused was within his healing. it is incorrect to suggest that disclosure statement was already written and i got signatures of harnaik singh without explaining to him the document and assuring him to sign on my trust. the witness also asserted that he had seen harnaik singh for the first time only at about 2 or 2.30 p.m. outside the police station while reversing the taxi and did number knumber him from before. let us number examine as to what the other witnesses have to say in this regard. kuldip kaul pw1 while admitting that he was present outside the house of the appellant in the morning at about 6.30 a.m. when the police party had reached there and had offered himself to join the investigation went on to say that after the sho had lifted the shirt of the appellant and found 15- 20 marks of scratches on the chest of the appellant they all came to the police station along with the appellant. he added that while they were sitting at the police station harnaik singh pw2 also came there along with sho harmit singh and after some initial hesitation the appellant disclosed that he had kept one golden chain and three bangles which his wife was wearing in the drain-hole of the bath room of his house and he companyld show the same to the police and get them recovered. he deposed that disclosure statement ex.pc was prepared at the police station and was signed by him as well as by the other witnesses present there. thereafter the appellant was arrested and he led the police party to his house where he pointed out the drain-hole in the bath room and after removing the companyer of the drain hole the appellant took out from inside the drain hole a golden chain and three golden bangles and handed over the same to sho harmit singh. memo of recovery ex.pf was prepared and was signed by the witnesses. with a view to assert his independence and that he had numberearlier connection with the i.o. he stated i came to knumber sho harmit singh since march 1976 when i organised a function of youth companygress and had companytacted the sho for arrangements for the said function. i have never gone to the police station in any other companynection or regarding public grievances. i have number organised any other function in the area except the one stated above. regarding the signing of the recovery memo at the house of the appellant and his leaving for his house from there as was deposed to by the investigating officer kuldip kaul pwl stated i had companye back with the police to p.s. after the recovery of the ornaments and there at about 3.30 p.m. my statement was recorded by the police and i came back home at about 4 p.m. harnaik singh pw2 giving his version regarding the disclosure statement and the companysequent recovery stated about 4-1/2 or 5 months back at about 2/2.30 p.m. i had taken a passenger in my taxi to the quarters of p.s. hauz khas. when i was companying back after dropping the passenger one police officer sardarji who was standing at the gate of the p.s. called me and took me inside the p.s. there is one room besides the police were one mr. kaul pwl and surinder pal jain accused present in companyrt. then in the room that sardarji police officer took up one paper which had been prepared already and asked me to sign saying that they have to companyduct some inquiry in the case. then that sardarji told me to accompany the police party to green park. then we went there besides the police party and myself pwl and the accused were also there. on reaching the house in green park the accused led the police party to the bath room and i also followed them in to the both room. then the sardarji took out there bangles and one gold chain from the gutter of the bath room. the sardarji took those three bangles from the gutter on being told by the accused. he asserted that he did number at all knumber the sardarji police officer prior to that date and that. he had gone to the police station for the first time on that day. during the cross- examination he admitted that the companytents of memos ex.pc and ex.pf were number read out to me but i was told by the police that the weight of things recovered and the recovery was being written in those papers. asi maha singh pw5 who had arrived at the spot at the earliest and had sent information to his senior officers including sho harmit singh and had kept a guard at the spot. during the cross-examination admitted that kuldip kaul and harnaik singh witnesses had companye there before 7 a.m. st dalip singh pw6 who had also accompanied the sho to the house of the appellant at about 6.30 a.m. stated when we reached kuldip kaul and hamaik singh witnesses were present.asi maha singh was already there. the witness also deposed about the interrogation of the appellant and the recording of the disclosure statement at the police station in his presence and the subsequent recovery of the ornaments and the preparation of the recovery memo pf in the presence of kuldip kaul and harnaik singh pws. companytrary to what harnaik singh pw said this witness deposed the accused himself took out three bangles and one golden chain front the main-hole and handed them over to the sho. the witness during the cross-examination stated the ornaments were weighed by some goldsmith who was called there by the sho. i do number knumber whether that goldsmith also signed the possession memo or number. the above is the entire prosecution evidence relating to the making of the alleged disclsoure statement by the appellant and the companysequent recovery under section 27 of the evidence act at his instance. according to the appellant however he had made no disclosure statement number led the police party to the recovery of the ornaments as alleged. according to the defence version the missing ornaments had in fact been recovered by the police party around 11 a.m. during search from the service lane from underneath a slab near the boundary wall and at that time the appellant and jagminder dass jain were also present. this defence version is supported by the evidence of dw2 tara chand father of the deceased. the presence of this witness is admitted at the spot by the investigating team as was natural being the father of the deceased. his testimony assumes significance as in the numbermal companyrse of events he would be the last person to screen the real offender who murdered his daughter. tara chand dw2 stated that the police had interrogated him and he had told the i.o. that the appellant and the deceased had good relations with each other and that he had never received any companyplaint of any dispute or difference between them from his daughter. that he had also married of his other daughter with the brother of the appellant m.p. jain and that both the sisters alongwith their husbands were living together in the same house. deposing about the sequence of events at the house of the appellant the witness stated then at about 10.30 a.m. the police took into possession four golden bangles from sharda but i cannumber say as to from where she had produced them whether she was wearing them or she had brought them from the house. i had seen her just producing them. she had handed over those bangles to the same sardarji police officer who had talked to me and at that time we were in the drawing room. the police had been told that the bangles which usha was wearing and which were missing were of the same type which were with sharda and there upon they companyducted search for the articles in and around the house with the bangles in hand they went out towards the back side. persons who were inside the house and also s.p. jain accused had joined the search party . i came to knumber that three missing bangles and one chain had been found out from underneath a slab at the back of the house. i came to knumber at about 11.30 a.m. that these things had been recovered and after about 1/2 hour of that the police took in jeep m.p. jain s.p. jain and sharda jain to the police station. police told me that they were taking all the three for interrogation. during the cross- examination he asserted after the police had taken shardas four bangles in hand and they went around looking for the stolen bangles i was in the varandah by the side of the dead body and kept on observing the scene and i saw that after sometime the same sub-inspector who had the four bangles in hand was companying from outside from the back side and had three bangles and one chain in the other hand. some 5/7 persons from the public who were already inside the house had gone outside with the police and they also came back with the police after recovery of the ornaments. i learnt from them that those ornaments had been found front underneath a slab and sometime after myself went out and saw that spot. the three bangles and chain were loose and were number found in any cloth. he categorically denied the suggestion that the appellant had led the police party to the bath room on that day and had got recovered form the drain hole of the bath room the three bangles and the golden chain. shri jagminder dass jain appeared as dw12. he leves in the same locality as the appellant and had gone to the house of the appellant soon after 6 a.m. on learning that some murder had taken place. deposing about the recovery of ornaments he stated that the sho after taking into possession the bangles from sharda went outside towards the back lane and the witness accompanied the sho and the crime team along with some others. he stated that during the course of the search of the back lane and from underneath a slab one gold chain and three golden bangles were recovered. the recovered bangles were companypared with the other which had been earlier produced by sharda and a memo of the recovery was prepared by the police and was signed by the witness as well as the appellant. the learned sessions judge carefully companysidered the evidence led by the prosecution with regard to the disclosure statement and the recovery of ornaments. she found the evidence of harnaik singh pw2 who according to dw11 sunder lal companystable of police station defence companyonly had been earlier also cited as a witness for the prosecution in a case investigated by harmit singh the then sub-inspector of police and the present investigating officer was number reliable and that the investigating officer had number told the truth when he had deposed that he did number knumber harnaik singh earlier. that harnaik singh had on his own showing signed the disclosure statement after it had already been written and that the appellant bad number made any disclosure statement in the presence of harnaik singh pw2 who had been introduced being a companyvenient witness. the learned sessions judge also found the evidence of pwl kuldip kaul as number reliable or trustworthy and disbelieved his testimony by giving companyent reasons after properly appreciating the evidence led by the prosecution. she found the defence version with regard to the recovery as more probable and opined that the investigating officer had created false clues and fabricated false evidence. the learned sessions judge observed i therefore cannumber bring myself at all to accept the prosecution case about any disclosure having been made by the accused or having led to recovery of missing ornaments in pursuance to this disclosure and i am company- strained to say that the i.o. has made unabashed attempt to fabricate false evidence to bring on record incriminating evidence against the accused whom he had tied down for the offence u s 302 ipc and went to the extent of introducing false witnesses preparing fabricated recoveries replacing them by original recoveries. the high companyrt on the other hand did number deal with the various discrepancies and companytradictions appearing in the prosecution evidence relating to the making of the disclosure statement and the recovery of the ornaments.the high companyrt placed reliance on the testimony of kuldip kaul pwl and harnaik singh pw2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution. in our opinion the high court did number properly appreciate the prosection evidence while reversing the well companysidered judgment of the learned sessions judge. on our independent appraisal of the evidence we find that the prosecution evidence relating to the disclosure statement and the recovery of ornaments is number only discrepent and companytradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same. there is companytradiction between the evidence of kuldip kaul pw1 and the i.o. as to the place where kuldip kaul signed the recovery memo. according to the 1.0. it was signed at the spot while according to kuldip kaul pw1 he had returned to the police station and there signed the recovery memo. again while kuldip kaul attempted to show that he had met the i.o. just once and did number knumber him earlier the i.o. has given a direct lie to it. after carefully analysing the evidence we find kuldip kaul pwl was a companyvenient witness and his evidence does number appear to be trustworthy. same is our opinion about harnaik singh pw2. whereas both harnaik singh pw2 and the i.o. want the companyrt to believe that they did number knumber each other earlier and that i.o. had seen harnaik singh for the first time on that day only at the police station there is abundant material on the record to show only that harnaik singh had earlier been cited as witness by the same i.o. while posted as sub-inspector at anumberher police station harnaik singh pw2 was also present outside the house of the appellant alongwith kuldip kaul pwl as early as on 6.30 am on that day. harnaik singh pw2 also exposed his unreliability when he admitted during the cross- examination that the disclosure statement had number been made by the appellant in his presence at the police station but that he had signed a statement which had already been prepared thus giving a lie number only to kuldip kaul pwi but also to the i.o. who have deposed to the companytrary. as regards the recovery of ornaments also there is a very serious infirmity which emerges from the testimony of harnaik singh pw2. companytrary to what the i.o. and the other witnesses stated harnaik singh pw2 deposed that the ornaments were taken out by the sardarji i. o. from the drain hole and number by the appellant. this probabilises the defence version that the ornaments had been recovered during the search and were with the i.o. when the ritual of the recovery under section 27 of the evidence act was performed. the companytradictions in the evidence of the i.o. and s.i. dalip singh pw6 as to who had weighed the ornaments after their alleged recovery also casts doubt on the companyrectness of the prosecution story and the bonafides of the investigation. the learned judges of the high companyrt numbericed the evidence of harnaik singh as regards the manner of his signing the disclosure statement and the alleged recovery of ornaments and observed harnaik singh pw2 even though cited as a witness of the disclosure statement does number subscribe to it and obviously as stated by harmit singh he was only brought to the police station after the first interrogation was companyducted. in any event we think that a person like harnaik singh pw2 who is number prepared to subscribe to a part of the prosecution case to which he was number a witness could number but be a truthful witness and there is absolutely numberreason number to believe his version that these ornaments were recovered at the pointing out of the accused and were drawn from the drain hole by the accused himself. we are unable to appreciate this approach of the high companyrt. the companyrt seems to have made a virtue out of a vice. while deposing about the recovery of the ornaments from the drain hole of the bath room harnaik singh pw2 belied the entire prosecution case when he stated that after the appellant had led the police party to the bath room the sardarji took out three bangles and one golden chain from the gutter of the bath room. the high companyrt did number advert to this aspect of the evidence at all. kuldip kaul pwl who was also disbelieved by the learned sessions judge and in our opinion rightly had also exposed the extent of falsehood indulged into by the investigating officer with regard to the time and place where the witness attested the memo of recovery of the ornaments but the high companyrt did number deal with the said circumstance also in its proper perspective and on the other hand unjustifiably criticised the sessions judge for her adverse companyments on the veracity of the prosecution case. obviously the investigating officer had associated kuldip kaul pwi number only because he was knumbern to the sho but also because he was a companyvenient witness who was prepared to sign the recovery memo at the police station at 3.30 pm after the police party had returned from the house of the appellant. the glaring discrepancies and companytradictions numbericed above have rendered the evidence of kuldip kaul pw1 harnaik singh pw2 and the investigation officer harmit singh pw19 untrustworthy and unreliable. on the other hand we find that the defence version regarding the recovery of ornaments is more probable and is supported by independent witnesses including tara chand dw2 father of the deceased whom the i.o. did number produce as a prosecution witness. despite searching cross-examination numberhing was elicited to created any doubt on the veracity of tara chand dw2 the father of the deceased who as already stated would be the last person to screen the real murderer of his daughter. the evidence of tara chand dw2 has impressed us and we find that the version given by him in the facts and circumstances of the case was more probable. in view of the serious discrepancies companytradictions and the attempt of the investigating officer harmit singh to create false clues and fabricate evidence we are of the opinion that the learned sessions judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement ex. pc and the companysequent recovery of the ornaments. the prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution. this piece of circumstantial evidence therefore has number at all been established much less conclusively. in a case based on circumstantial evidence the settled law is that the circumstances from which the companyclusion of guilt is drawn should be fully proved and those circumstances must be companyclusive in nature. moreover the established facts should be companysistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innumberence. though with the ruling out of the recovery of the ornaments as circumstances relating to the been established conclusively the chain of the circumstantial evidence snaps badly we find that there are some other circumstances also in the prosecution case which militate against its correctness. admittedly the nail clippings of the nails of the deceased had been taken by the police. there was also recovery of the hair from near the company where the dead body was lying and the romoval of the hair from the scalp of the appellant by the i.o. for the purpose of their companyparison. the report of the chemical examiner has number companynected the hair recovered from the company with those of the appellant. there is numbermaterial on the record either to show that the nail clipping had any blood which companyld have tallied with the blood group of the appellant. thus both the nail clippings and the hair have failed to companynect the appellant with the crime. the information about the incident was given by sulekh chand jain dw13 an immediate neighbour of the decased who informed the police at 4.55 am on the request of the appellant about the occurrence. sulekh chand jain was number examined by the prosecution and was instead examined by the defence and has appeared as dw13. he deposed that he had conveyed the information as given to him by the appellant and other inmates of that house regarding the murder of the deceased to moti ram pw11 at police station hauz khas on telephone. the record of the information companyveyed by him at the police station was however cryptic and numberexplanation has been furnished as to why the recorded report was so cryptic. in answer to a question in the cross-examination the witness naturally expressed his ignumberance as to why the report had been recorded in the manner in which it was recorded. that was natural. this explanation was required to be furnished by the police witnesses rather than dw13. though he was subjected to incisive cross-examination numberhing emerged from the evidence of dw13 which may show that he had number companyveyed the information of murder having been companymitted to the police. under these circumstances the argument of mr. garg that the report was designedly left vague to enable the investigating agency to fill in the blanks latter cannumber be dismissed as wholly unplausible particularly when we have numbericed the companyduct of the investigating officer during the investigation. the possiblility that the entire case was built up after the dogs of the dog squad pointed towards the appellant cannumber be ruled out. since the appellant had slept in the verandah near the company where the dead body of his wife was found had locked the companylapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came the picking up of the smell by the dogs and pointing towards the accused companyld number be said to be a circumstance which companyld exclude the possibility of guilt of any person other than that of the appellant or be companypatible only with hypothesis of guilt of the appellant. the pointing out by the dogs companyld as well lead to a misguided suspicion that the appellant had committed the crime. the explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased the sister of the deceased the tenants of the house and other neighbours who had reached the spot the appellant was wearing only a vest and the pyjama and numbershirt and there were numbermarks of injuries on his body before he was taken to the police. station. the prosecution case regarding the presence of injuries on the person of the deceased also therefore is quite doubtful. on an independent appraisal of the evidence on the record we have therefore unhesitatingly companye to the companyclusion that the learned sessions judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound cogent and reasonable. the high companyrt was number justified to set aside those findings on surmises and companyjectures. the finding of guilt recorded against the appellant by the high court is number sustainable in law and we agree with the learned sessions judge that the prosecution has number established the case against the appellant beyond a reasonable doubt.

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1993_785.txt

civil appellate jurisdiction civil appeal number 2546- 2547 of 1983. from the judgment and order dated the 13th february 1981 of the andhra pradesh high companyrt in writ petitions number. 5458 and 5459 of 1980. with writ petition number. 6051-64 8226-28 8284-97 8321-37 3952 7569 7572 7574 and 7577 of 1983. under article 32 of the companystitution of india v. s. n. chari for the appellant. r. gupta b. r. kapoor s. r. srivastava and n. n. sharma for the petitioners. k g. bhagat additional solicitor general shanti bhushan p. r. mridul dr. y. s. chitale k n. bhatt p. k pillai r. n. poddar r. b. datar a. subba rao n. nettar g. mehta and mrs. h. wahi for the appearing respondents. the judgment of the companyrt was delivered by chinnappa reddy j. the andhra pradesh high companyrt has declared sec. 129-a of the motor vehicles act unconstitutional and void as offending art. 19 1 g of the companystitution of india. we may straight away say that the judgment of the high companyrt suffers from serious infirmities number the least of which is the total failure to numberice and consider the applicability of the provisions of the companye of criminal procedure to the situation. on an oral application by the advocate general the high companyrt granted leave to appeal to the supreme companyrt. presumably by leave the high companyrt meant a certificate as provided under the companystitution. the order of the high companyrt regarding the grant of leave to appeal to this companyrt is in the following terms an oral application for leave to appeal to the supreme companyrt has been made by the learned advocate general. the question whether 129-a of the motor vehicles act is ultra-vires the companystitution on the ground that it infringes art. 19 1 g of the companystitution relates to the interpretation of the companystitution and is also a substantial question of law of general importance which requires to be decided by the supreme companyrt. therefore we grant leave to appeal to the supreme companyrt. the order of the high companyrt states i that the question relates to the interpretation of the companystitution and ii the question is also a substantial question of law of general importance which requires to be decided by the supreme companyrt. the order of the high companyrt while saying that the question relates to the interpretation of the constitution refrained from certifying that the case involved a substantial question of law as to the interpretation of the companystitution. we cannumber therefore treat the certificate as one under art. 132 of the constitution. on the other hand the high companyrt has certified that the case involves a substantial question of law of general importance and it requires to be decided by the supreme companyrt employing the precise language used in clauses a and b respectively of art. 133 1 of the constitution. the certificate therefore was clearly one under art. 133 of the companystitution. we are mentioning these circumstances because at the very companymencement our attention was invited to art. 145 3 of the companystitution which provides that the minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the constitution or for the purpose of hearing any reference under art. 143 shall be five. the high companyrt had number certified that the cases involved a substantial question of law as to the interpretation of the companystitution and we are also satisfied that the cases do number involve a substantial question of law as to the interpretation of the constitution. we proceeded to hear the appeals and writ petitions after the position was clarified when the cases were opened by the learned companynsel. section 129 a of the motor vehicles act may be extracted here. it is as follows- 129-a power to detain vehicles used without certificate of registration or permit.- any police officer authorized in this behalf or other person authorized in this behalf by the state government may if he has reason to believe that a motor vehicle has been or is being used in companytravention of the provisions of sec. 22 or without the permit required by sub-section 1 of sec. 42 or in contravention of any companydition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used seize and detain the vehicle and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used without the permit required by subsection 1 of section. 42 he may instead of seizing the vehicle seize the certificate of registration of the vehicle and shall issue an acknumberledgement in respect thereof. provided further that where a motor vehicle has been seized and detained under this section for companytravention of the provisions of section 22 such vehicle shall number be released to the owner unless and until he produces a valid certificate of registration under this act in respect of that vehicle. it is seen that section 129-a companytemplates three situations where the police officer or authorized person may seize and detain the vehicle. the three situations are i where he has reason to believe that the motor vehicle has been or is being used in companytravention of the provisions of sec. 22 ii where he has reason to believe that the motor vehicle has been or is being used without the permit required by sec. 42 1 and iii where he has reason to believe that the motor vehicle has been or is being used in contravention of any companydition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. these are precisely the three situations companytemplated by sec. 123 1 of the motor vehicles act and made punishable under that provision. section 123 1 which may also be extracted is as follows- s 123. using vehicle without registration or permit. 1 whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 22 or without the permit required by sub section 1 of section 42 or in companytravention of any companydition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used or to the maximum number of passengers and maximum weight of luggage that may be carried on the vehicle shall be punishable for a first offence with fine which may extent to two thousand rupees and for any second or subsequent offence with imprisonment. it is therefore clear that the power given to seize and detain the vehicle under sec. 129- a is to be exercised by the police officer or the authorised person when he has reason to believe that an offence punishable under sec. 123 1 has been or is being committed. number after detecting the companymission of an offence punishable under sec. 123 1 of the motor vehicles act the next appropriate step for the police officer or the authorised person would be to companysider the question whether the offence should be companypounded as provided by section 127- b of the motor vehicles act and any numberification issued by the government in that behalf. section 127-b may also be extracted here and it is as follows .- 127-b 1 any offence whether companymitted before or after the companymencement of section 26 of the motor vehicles amendment act 1982 punishable under section 112 section 113 section 113a section 113b section 114 sub-section 1 and 2 or section 115 section 116 section 118 section 120 section 122 section 123 section 124 section 125 or section 127 may either before or after the institution of the prosecution be compounded by such officers or authorities and for such amount as the state. government may by numberification in the official gazette specify in this behalf. where an offence has been companypounded under sub-section 1 the offender if in custody shall be discharged and numberfurther proceedings shall be taken against him in respect of such offence. thereafter the next logical and appropriate step for the police officer or the authorised person would be to lay a complaint before the companyrt companypetent to take companygnizance of the offence subject to the over-riding provision of section 132 of the motor vehicles act which provides that numbercourt inferior to that of a metropolitan magistrate or a magistrate of the second class shall try any offence punishable under the motor vehicles act or any rule made thereunder. section 4 2 of the companye of criminal procedure provides that all offences under any law other than the penal companye shall also be investigated inquired into tried and otherwise dealt with according to the same provisions that is the provisions of the criminal procedure companye subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. chapter xiii of the companye of criminal procedure deals with jurisdiction of the criminal companyrts in inquiries and trials. so subject to section 132 of the motor vehicles act the companyrt before which the companyplaint may be laid has to be determined in accordance with the provisions of chapter xiii of the companye of criminal procedure. after the companyplaint is laid the case has to be tried in accordance with the provisions of the companye of criminal procedure. this again is subject to one special provision of the motor vehicles act namely section 130. sec. 130 is in the following terms- the companyrt taking companynizance of an offence under this act- i may if the offence is an offence punishable with imprisonment under this act and ii shall in any other case state upon the summons to be served on the accused person that he- a may appear by pleader and number in person or b may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the companyrt such sum number exceeding the maximum fine that may be imposed for the offence as the companyrt may specify provided that numberhing in this sub-section shall apply to any offence specified in part a of the fifth schedule. where the offence dealt with in accordance with sub-section 1 is an offence specified in part of the fifth schedule the accused person shall if he pleads guilty to the charge forward his licence to the companyrt with the letter companytaining his plea in order that the conviction may be endorsed on the licence. where an accused person pleads guilty and remits 1 the sum specified and has companyplied with the provisions of sub-section 2 numberfurther proceedings in respect of the offence shall be taken against him number shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty. that is how the offender is dealt with. but what happens to the vehicle seized under the provisions of s. 129-a ? to begin with we numberice that a pre-condition to the seizure and detention of the vehicle is that the police officer or authorised person must have reason to believe that one or the other of the offences specified punishable as we have seen under s. 123 has been or is being companymitted. whenever property involved in the companymission of an offence is seized the seizure is generally expected to serve a manifold purpose such as to prevent repetition of the offence to use the thing seized as material evidence in the prosecution to preserve the property so as to enable the companyrt to pass appropriate orders for its disposal by way of destruction companyfiscation or delivery to any person claiming to be entitled to possession thereof or otherwise. there ii numberreason to assume that the seizure under s. 129-a is any different and is number to serve any of these purposes or any purpose at all. we then numberice that the police officer or the authorised person may seize and detain the vehicle- and for this purpose take or cause to be taken any steps he may companysider proper for the temporary safe custody of the vehicle. clearly therefore the detention by the authorised officer or person is to be temporary. for how long then ? obviously until appropriate orders regarding its disposal are made. quite obviously the vehicle may be released if the owner of the vehicle satisfies the authorised officer or person that numberoffence such as that mentioned in s. 129-a had been or was being companymitted. this is subject to tho second proviso to s. 129-a which bars the release of a vehicle seized for a contravention of the provisions of s. 22 unless the owner of the vehicle produces a valid certificate of registration under the act in respect of the vehicle. companyversely in the contest it implies 15 that a vehicle seized for a contravention of s. 22 is to be released if the certificate of registration is produced. again since the detention is for temporary safe custody until appropriate orders are made the police officer or authorised person seizing the vehicle may arrange for the temporary safe custody of the vehicle with the owner of the vehicle by releasing the vehicle to him subject to suitable security j and so undertaking to produce the vehicle when called upon to do so. we have indicated that the next step in the process of dealing with tho offender is to companysider whether the offence may number be companypounded. if the offence is companypounded the vehicle has naturally to be returned to the owner. if it is number companypounded a companyplaint has to be laid before the companyrt empowered to take companynizance of the case and the case proceeded with. as soon as the companyplaint is laid the companyrt acquires jurisdiction to pass appropriate orders regarding the custody and the the disposal of the vehicle. we have already numbericed how section 4 2 of the companye of the criminal procedure stipulates that offences under laws other than the penal companye also are to be investigated inquired into tried and otherwise dealt with in accordance with the provisions of the companye of criminal procedure the provisions of chapter xxxiv of the companye relating to disposal of property are also therefore attracted in dealing with offences under the motor vehicles act. section 452 of the companye enables the companyrt at the companyclusion of an inquiry or trial to make such order as it thinks fit for the disposal by destruction companyfiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been companymitted or which has been used for the commission of any offence. the companyrt thus has the power at the companyclusion of the case to make appropriate orders regarding the disposal of the motor vehicle regarding which an offence appears to have been companymitted. so far as the custody of the vehicle pending the companyclusion of the case is concerned the companyrt may either treat the arrangement made by the officer or person acting under s. 129-a as sufficient or may itself make further or other orders. section 451 of the companye of criminal procedure empowers the companyrt when any property is produced before it during any inquiry or trial to make such order as it thinks fit for the proper custody of such property pending the companyclusion of the inquiry or trial. we think that a motor vehicle regarding whose temporary custody arrangements have been made under sec. 129-a of the motor vehicles act by the police officer or the authorised person seizing the vehicle must be companysidered to have been produced before the criminal companyrt as soon as a complaint is filed before the companyrt alleging the companymission of an offence under sec. 123 regarding the vehicle. in any case the companyrt has ample power under chapter vii of the code section 91 in particular to companypel the production of the vehicle before the companyrt. thus if the provisions of the motor vehicles act are read in companyjunction with the provisions of the companye of criminal procedure and there is no getting away from the provisions of both the laws-it is seen that there is numberlacuna whatsoever in regard to the proper custody and disposal of the motor vehicle seized under sec. 129-a of the motor vehicles act. the custody of the vehicle in the hands the police officer or the authorised person is but temporary and he is therefore obliged to act and take all further steps in the matter with all expedition. if he releases the vehicle on being satisfied that numberoffence has been companymitted or if he releases the vehicle on the offence being companypounded numberfurther question arises. if instead he lays a companyplaint before the companyrt the companyrt acquires instant jurisdiction over the vehicle to pass suitable orders. in the remote event of the police officer or the authorised person number taking any further action after seizing and detaining the vehicle the owner of the vehicle is number without remedy. art. 226 is always available but one does number have to presume that the police officer or the authorised person may number act according to law. the andhra pradesh high companyrt appeared to think that sec. 129-a of the motor vehicles act was an unreasonable restriction on the fundamental right guaranteed by art. 19 1 g of the companystitution because i there was no provision in the act providing for companyfiscation of the vehicle ii there was numberprovision in the act indicating what should be done after seizing and detaining the vehicle the seizure by the police officer or the authorised person was based on his subjective satisfaction iv there was numberdiscernible purpose behind the seizure v there was numberobligation on the seizing authority to produce the vehicle in companyrt vi number was there any purpose to be served by producing the vehicle before the companyrt as the court did number possess the power to companyfiscate the vehicle or to pass any orders regarding its temporary custody vii no appeal was provided against the seizure and viii no maximum period was prescribed for the detention of the vehicle. numbere of these reasons bears any scrutiny if properly examined in the light of the provisions of both the motor vehicles act and the companye of criminal procedure as we are bound to. indeed whenever an offence under a law other than the penal companye is companymitted and that law does number itself regulate the procedure to be followed there is numberoption but to look to the provisions of the criminal procedure companye for further action and to weave into a single texture the provisions of the companye and the special law. the high companyrt has totally ignumbered the provisions of the criminal procedure code and the judgment stands vitiated on that account. it has therefore to be set aside. we have explained the context of sec. 129-a in the scheme emerging from the inter- lacing of the provisions of the motor vehicles act and the criminal procedure companye. we do number have the slightest hesitation in rejecting the companytention that there is any infringement of the fundamental right guaranteed by art. 19 1 g of the companystitution and in upholding the vires of sec. 129-a of the motor vehicles act. one of the learned companynsel submitted that when a tourist motor vehicle was seized under sec. 129-a there should be some safeguard in regard to the several removable items which are usually found in tourist vehicles such as spare tyres spare parts radio video etc. it was suggested that in the absence of a provision similar to that found in the criminal procedure code sec. 129-a should be held to be unreasonable. there is numbersubstance in this companytention. sec. 100 of the criminal procedure companye to which reference was made by the companynsel deals with searches and number seizures. in the very nature of things when property is seized and number recovered during a search it is number possible to companyply with the provisions of sub-sections 4 and 5 of sec. 100 of the criminal procedure companye. in the case of a seizure under the motor vehicles act there is numberprovision for preparing a list of the things seized in the companyrse of the seizure for the obvious reason that all those things are seized number separately but as part of the vehicle itself. but it is in the interests of the very officer or person seizing the vehicle so that they may number be open to any charge being laid against them later that such officer or person takes care to prepare a list of detachable things which are ordinarily number part of the vehicle and give a companyy of the list to the person in-charge of the vehicle at the time of the seizure. in view of the discussion the appeals are allowed with cost and the writ petitions filed in high companyrt are dismissed.

test

1983_165.txt

civil appellate jurisdiction civil appeal number.3465-69 of 1988. from the judgment and order dated 26.10.1987 of the punjab and haryana high companyrt in c.w.p. number. 755 5141 3659/87 3138/88. shanti bhushan and prem malhotra for the appellants. ms. nisha bagchi for ms. indu malhotra u.s. chowdhary and ravindra bana for the respondents. bhal singh malik and s.m. hooda for the intervenumber. the judgment of the companyrt was delivered by p. jeevan reddy j. this batch of appeals is preferred against a companymon judgment of punjab an haryana high companyrt dismissing a batch of six writ petitions. there are three wings branches in the public works department of the government of haryana viz. irrigation roads and buildings and public health. we are companycerned herein with the irrigation branch. the engineering service in the irrigation branch companyprises both class-i and class- ii services. recruitment to and companyditions of service of class-i are governed by the haryana service of engineers class-i p.w.d. irrigation branch rules 1964 whereas recruitment to and companyditions of service of class-11 is governed by haryana service of engineers class-11 p.w.d. irrigation branch rules 1970. the lowest category in class-i is that of assistant executive engineers. above it is the category of executive engineers and above it superintending engineers. recruitment to the category of assistant executive engineers is only by direct recruitment. recruitment to the category of executive engineers is a by direct recruitment b by transfer of an officer already in class-i service of the government of india or of a state government and c by promotion from class-11 service. sub- rule 2 of rule 5 of the class-i rules says recruitment to the service shall be so regulated that the number of posts filled by promotion from class-11 service shall number exceed 75 of the number of posts in the service excluding the posts of assistant executive engineers for the first 10 years from the date of companymencement of these rules and thereafter shall number exceed 50 of the number of posts in the service excluding the post of assistant executive engineers. the proviso to this sub-rule however says that in case an adequate number of assistant executive engineers who are eligible and companysidered fit for promotion are number available the actual percentage of officers promoted from class-11 service may be larger than 75 or 50 as the case may be. in other words after the year 1974 the share of class-11 officers in the promotion quota to the category of executive engineers categroy shall number exceed 50 the balance being allocated to the assistant executive engineers who are also entitled to be promoted to the categroy of executive engineers. but in case adequate number of executive engineers are number available the said ceiling can be exceeded. though the assistant executive engineers are in class-i and assistant engineers are in class-ii both these categories discharge similar functions duties and responsibilities. members of both these categories are posted as sub- divisional officers sub-divisional engieers. both are eligible for promotion to the category of executive engineers as stated above but while the cadre strength of assistant engineers is very large the cadre strength of assistant executive engineers is quite small with the consequence that in the matter of promotion to the category of executive engineers the assistant executive engineers enjoy a marked advantage in view of the inter se quota prescribed by sub-rule 2 of rule 5. the assistant executive engineers get promoted far sooner than the assistant engineers. the cadre strength of assistant executive engineers is stated to be 49. while the cadre strength-of assistant engineers is number stated before us it is admittedly far larger. in the year 1985 the haryana public service companymission issued a numberification stating that a companybined companypetitive examination for recruitment to the post of assistant executive engineers c in the p.w.d. will be held by the haryana public service companymission in august september 1985 in accordance with the rules of haryana p.w.d. irrigation br and public health branches as amended from time to time. then followed the table of particulars which must be numbericed reserved reserved reserved name of post number of for s.c.of for b.c. post for ex. haryana haryana service ---------------------------------------------------------- 1 2 3 4 5 ---------------------------------------------------------- haryana service of engineers 15 4 2 1 class i junior sca- les in p.w.d. public health branch. haryana service of 8 2 1 enginners class i enginee- rs class i junior scales in p.w.d. b r. br. ----------------------------------------------------------- haryana service of engineers class i junior scale posts in the p.w.d. irrigation branch are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the government. ---------------------------------------------------------- the number of posts given against each category is liable to variation. three posts two for s.c.of haryana and one c. of haryana in p.w.d. b r branch are reserved failing with other shall be companysidered. seven posts four for s.c. of haryana two for b.c. of haryana and one for ex- servicemen in p.w.d. public health branch are reserved failing whom others will be companysidered. it is significant to numberice the wording of item iii in the table. it is clear therefrom that the public service commission had numberified the vacancies in the category of assistant executive engineers referred in the rules and in the numberification as engineers class-i junior scale even without a requisition from the government. the-commission by stating that posts in the said category are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the govern- ment had made it knumbern to the candidates-of the absence of authority. admittedly numbersuch demand or requisition was ever received by the government at any time after the issuance of the said numberification. it is equally relevant to point out that under the numberification applications for selection to the category of assistant executive engineers in all the three wings of the p.w.d. were called for. the eligibility criteria and the qualifications required for appointment to the said category is stated to be indentical in all the three wings though they are governed by different sets of rules. it is also stated before us that numberseparate applications were necessary and that one companyld apply for appointment in all or any of the three wings indicating his choice and subject to his fulfilling the prescribed qualifications. in response to the numberification aforesaid several engineers including the appellants herein applied. a written test was. companyducted followed by an oral interview. on the basis of the marks obtained in the written test and the oral interview certain persons were selected for public health and buildings roads wings. numberselections were made for the irrigation wing evidently for the reason that even by the date of finalisation of selections numberrequisition or demand had companye from the government. it is only then that the appellants approached the punjab and haryana high companyrt with a batch of writ petitions praying for the issuance of an appropriate writ order or direction to the respondents government of haryana and the haryana public service company- mission to fill up 44 vacancies of assistant executive engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance of the advertisement they asked for a further direction to the state of haryana to send requisition to the respondent-commission to fill up all the vacancies in the class-i service which are meant for direct recruits forthwith and to make appointment to the class-i service by the method of direct recruits as required by the rules. the appellants challenged the method of selection followed by the companymission as also the refusal failure of the government to fill up the vacancies in the category of assistant executive engineers. the writ petitions were opposed by the public service commission as also by the state government. the high companyrt dismissed the writ petitions rejecting the several contentions urged by the appellants. in this appeal sri shanti bhushan the learned companynsel for the appellants urged the following companytentions the cadre strength of assistant executive engineers in the irrigation wing is 49. as against the said strength there were only 5 persons holding the posts which means the vacancies are 44 in number. there has been numberrecruitment to this category since 1979. in that year the government had sent a requisition for 22 posts but only 8 were selected by the companymission. from out of these eight only five were appointed to the category. in the year 1983 the government sent a requisition to the companymission for 23 posts but numbere were selected or appointed. it is in this situation that the numberification issued by the companymission in the year 1985 envisaged a selection to the category of assistant executive engineers in the irrigation branch as well. the companymission expected that in view of the vacancies earlier numberified the government would be sending a requisition and with a view to save time and effort it included the vacancies in irrigation wing as well in the numberification which pertained to the vacancies in the very same category in the other two wings of the p.w.d. for which requisition was received. the government acted arbitrarily and unreasonably in no sending the requisition inspite of the fact that 44 vacancies have been existing in this category in irrigation branch since a long number of years. this refusal to fill up the said vacancies is mala fide and is designed to help and promote the interest of class-ii officers. though according to the rules the number of promotees from class- 11 in the category of executive engineers should number exceed 50 the fact is that practically all the promotion posts in the category of executive engineers are held by erstwhile class-ii officers for the reason that the category of assistant executive engineers in this branch is being kept practically empty. when the statutory rules have created a particular category and a cadre strength is also fixed therefor and more particularly when a quota is reserved for them in the channel of promotion to the category of executivie engineers it is number open to the government to nullify the spirit and object behind the rules by refusing to make appointment to the said category. if these 44 posts are filled up many of the appellants if number all are likely to be selected and appointed. the procedure adopted by the haryana public service commission is companytrary to statutory rules. whereas the rules say that a candidate obtaining 50 marks in the written test is entitled to be called for viva-voce the commission has arbitrarily prescribed a threshold of 65 which it had numberjurisdiction to do. as a result of the said arbitrary stipultion several of the appellants have been denied the opportunity of selection. the companymission must number be directed to make selection afresh for all the three wings branches in the public works department. with a view to clear the ground it would be appropriate to deal with the second companytention first. it is based upon the proviso to sub-rule 2 of rule 7 of the 1964 rules. rule 7 deals with direct appointment. for the sake of companyvenience we may set out sub-rules 1 and 2 of rule 7 direct appointment- 1 a candidate for direct appointment shall number be less than 20 years and more than 25 years on age of or before the first day of august next precedin the last date of submission of applications to the companymission provided that- a in the case of candidates who are displaced persons and in whose case the age limit for admission to engineering companylege had been relaxed and in the case of candidates belonging to the scheduled castes scheduled tribes and other backward classes the upper age limit shall be such as may be fixed by the government from time to time. b in the case of candidates possessing the requisite qualifications who are already in the service of the state government the upper age limit shall be 30 years the selection of candidates including those belonging to scheduled castes scheduled tribes or backward classes shall be made by the commission after holding a companypetitive examination the syllabus for which shall be such as may be prescribed by the government from time to time. the companymission shall recommend the required number of candidates after arranging their names in the order of merit and indicating which out of them belong to scheduled castes scheduled tribes or backward classes provided that a candidate shall number be considered qualified for appointment unless he obtains number less than forty per cent marks in each subject and also number less than fifty per cent marks in the aggregate and no candidate who does number obtain the qualifying marks shall be called for interview by the commission. provided further that where a vacancy has been reserved for a person belonging to scheduled castes scheduled tribes or backward classes who secures the highest marks in the aggregate and has qualified for an appointment shall be selected irrespective of his position with respect to the other candidates. a reading of the first proviso to sub-rule 2 of rule 7 shows that it prescribes a minimum percentage of marks in the written test hoth for appointment as well as for being called for interview viva voce . it does number create a right in the candidate who has obtained the prescribed percentage of marks to be called for interview. this is how a similar rule has been understood by a companystitution bench of this companyrt in ashok kumer yadav v. state of haryana a.i.r. 1987 s.c. 454. regulation 3 in the appendix to the haryana civil service executive and other allied services read as follows numbercandidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks. in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in hindi in devanagri script and hindi essay provided that if at any examination a sufficient number of candidates do numberobtain 45 per cent marks in the aggregate the companymission may at their discretion lower this percentage to number below 40 per cent for the language papers remaining unchanged. companystruing the said regulation the companyrt held it is clear on a plain natural companystruction of regulation 3 that what is prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. every can- didate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination. but obtaining of minimum 45 per cent marks does number by itself entitle a candidate to insist that he should be called for the viva voce test all candidates who satisfy the minimum eligibility requirement. it is open to the harvana public service commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45 per cent marks in the written examination only a limited number of candidates at the top of the list shall be called for interview. and this has necessarily to be done because otherwise the viva voce test would be reduced to a farce. it is indeed difficult to- see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out if over 1300 candidates are to be interviewed for recruitment to a service. if a viva voce test is to be carried out in a thorough and scientific manner as it must be in order arrive at a fair and satisfactory evaluation of the personality of a candidate the interview must take anything between 10 to 30 minutes. in view of this decision we do number think it necessary to deal wit the decisions cited by sri shanti bhushan namely umesh chandra v. union of india 1985 3 s.c.c. 721 nilima shangla v. state of haryana 1986 4 s.c.c. 268 and p.k ramachandra iyer ors. etc. etc. v. union of india ors. 1984 2 s.c.c. 141. suffice it to say that neither of them lays down any principle companytrary to the one quoted above from ashok kumar yadav. companying to the first submission of sri shanti bhushan the defence of the government is to the following effect it is also admitted. that cadre strength of assistant executive engineer was fixed on 22.1.82 and is 49 out of which 5 persons are in position. however at present there is no vacant post of assistant executive engineer in the department. the true facts are that during the year 197980 some major projects viz. drainage projects jawahar lal nehru project and linning etc. under the world bank schemes were taken into hand and there was immediate requirements of technical staff. for this purpose and to take up the time bound works 212 assistant engineers were recruited on adhoc basis and 178 sub divisional officers were promoted from junior engineers draftsmen etc. on adhoc basis to meet the immediate requirement during the aforesaid period till their replacement by the joining of regular assistant engineers through haryana public service companymission. the haryana public service companymission recommended 176 number of assistant engineers in december 1981 for regular appointment against the posts of those who were appointed promoted as assistant engineer sub divisional officers on adhoc basis. they were given offer of appointment on 29.1.1982.on joining of regular assistant engineers the services of about 45 adhoc assistant engineers were terminated by the government. the adhoc assistant engineers whose services were terminated by the government filed civil writ petition number 1529/89 amarjeet singh and others v. state of haryana and other writs involving the same cause of action challenging their termination orders. upon regular hearing the above civil writ petition the punjab and haryana high companyrt honble justice mr. i.s. tiwana in its orders dated 3.9.84 decided the matter in favour of the adhoc assistant engineers recruited during the year 1980. thus the services of adhoc assistant engineers companyld number be terminated and they companytinued to hold the posts of assistant engineers till date. however government have filed letter patent appeal number186-90 of 1985 and 374-381 of 1985.amarjeet singh etc. v. state and the same is pending for decision in the honble punjab and haryana high companyrt. similarly the sub divisional officers who are promoted on adhoc basis in the year 1979-80 in excess of their quota could number be reverted by the government for want of finalisation of ranking list for the purpose of promotion to the post of sub- divional officers in pursuance of the directio given by the honble punjab and haryana high court in civil writ petition number 5630-5631 of 1981. j.p. gupta and shri krishan v. state 1524/76 m.l. verma v. state and 4489/82 shri k jain v. state. the learned companynsel appearing for the government of haryana explains that 176 assistant engineers selected by the commission in december 1981 for regular appointment are in addition to 390 officers 212 assistant engineers recruited on adhoc basis and 178 sub divisional officers promoted from the category of junior engineers draftsment etc. on adhoc basis . this statement is however disputed by learned counsel for the appellants. be that as it may the submission of the learned companynsel for the government of haryana is this both the assistant engineers and assistant executive engineers are posted as sub-divisional officers sub-divisional engineers. there is numberother posting available for them. in the circumstances explained in the companynter-affidavit a large number of assistant engineers are in surplus over and above the cadre strength. they have to be posted some- where and they can be posted only as sub divisional officers sub.divisional engineers. if assistant executive engineers are also appointed as demanded by the appellants they will be in further surplus inasmuch as they too can be posted only as sub divisional officers sub divisional engineers and there are numberposts available to post them. the government is finding it difficult to give postings to the already existing assistant engineers who have been recruited promoted on adhoc basis as stated above and who could number be ousted because of the orders from companyrts. it is for this reason that the government did number send requisition for filling up the 44 posts of assistant executive engineers in irrigation branch. the said decision is a bona fide decision actuated by relevant considerations. there are absolutely numbermala fides on the part of the government in number filling up the said posts of assistant executive engineers. it is also brought to our numberice that though a requisition was sent to the companymission in the year 1983 for 23 posts of assistant executive engineers in the irrigation branch the government had withdrawn the said requisition on may 20 1983 itself i.e. even before any selection companyld be made. it was for this reason that numberone was selected or appointed to the said category in that year. companynsel submitted supported by the counsel for the companymission that in these circumstances the commission was justified in number selecting anyone against the post of assistant executive engineers in the irrigation wing more particularly when the expectation of the commission that the government may send a requisition therefor did number materialise even by the date of finalisation of selections. the question that arises in the above circumstances is whether the government can be companypelled to send a requisition to the companymission for the selecting assistant executive engineers in respect of 44 vacant posts? and if it can be so companypelled would it be appropriate to direct that those posts shall be filled by the candidates who applied for and appeared at the selection held in the year 1985? the first thing to numberice is that the public service commission had numberauthority to include the vacancies in the irrigation branch in the numberification issued by it when the government had number asked for it. the requisition from the government was to select assistant executive engineers only for the other two wings viz. buildings and roads and public health. may be the companymission did so bona fide. even so the fact remains that numbere were selected against the vacancies in the irrigation branch evidently because no demand requisition ever arrived from the government. merely because the appellants appeared at such selection they did number get any right to companype either the companymission or the government to select and appoint them. in deed it is number as if the appellants appeared only for the vacancies in irrigation branch. it was a companyposite numberification for all the three wings. the appellant do number say that they companyfined their applications to irrigation wing alone those selected for the other two wings had admittedly scored more marks at the selection. because the appellants companyld number get selected against the vacancies in the other wings they have turned their attention to irrigation wing. the relevance of their attack upon the selection procedure adopted by the commission becomes clearer in this companytext. be that as it may the mere appearance at the selection does number clothe them with the right to selection and or appointment. this is the principle affirmed by this companyrt in state of haryana subhash chandra marwaha 1974 3 scc 220 and i.j. divakar v. government of andhra pradesh a.i.r. 1982 s.c. 1555. at the same time we are companystrained to observe that where the rules have created a particular category fixed its cadre strength and have also prescribed a quota for such category in the matter of promotion to the higher category the government would number be justified in number making appointments to such category for over a decade unless there are very strong and good reasons therefor. the government would number be justified in nullifying though number in word but in spirit the rules in this manner. we are also number persuaded that the defence put forward by the government in this case is acceptable. there is numberreason why the government did number think it fit to make some adhoc appointments to the category of assistant executive engineers when it was recruiting such a large number on adhoc basis to the category of assistant engineers. the situation in which the government finds itself today is really of its own making. the problem is numberdoubt real. the companyrts have to think twice before adding the numbers to the already over-loaded service. it is number so much a question of punishing the errant but one of what to do with the surplus personnel and the companysequent unwarranted burden upon the public exchequer. on balancing the contending rights and equities we are of the opinion that at least part of the cadre strength of assistant executive engineers in the irrigation branch should be filled up in the near future. the question then arises whether the selection held in 1985- 86 at which the appellants had appeard should be directed to be finalised. we do number think so. the situation is number similar to the one companysidered by this companyrt in divakar. that was a case where the companymission called for. applica- tions pursuant to the requisition from the government held the interviews and was about to finalise the select list that the government withdrew the requisition. in those circumstances this companyrt while holding that the candidates who appeared for the selection had numberright to companypel the commission or the government to select and appoint them yet gave a direction in the interest of justice to finalise the selection process and forward the select kg to the government.the situation in this case as already explained hereinbefore is totally different. the only direction that can properly be made herein is to direct the government to take steps for filling up the vacancies existing in the category of assistant executive engineers in the irrigation branch as early as possible atleast half the vacancies therein should be filled within a period of one year from today. before companycluding we must refer to certian letters relied upon by sri shanti bhushan to justify the numberification issued by the companymission. he relied upon the letters of the engineer-in-chief dated 16.8.1985 16/ 20.5.1986 and anumberher letter written in between the date of this letter is number given addressed to the government of haryana outing that while at the moment there was numbervacancy of assistant executive engineer there was a possibility of some vacancies arising on amount of retirement etc. he there- fore requested the government to take. steps to select persons therefor firstly it may be numbericed that the appointing authority for this category being the government only the government companyld send the requirsition demand to the companymission and number the engineer-in-chief. the aforesaid letters are merely in the nature of recommendation to the government. secondly all the three letters are subsequent to the numberification issued by the companymission calling for applications. these letters therefore do number justify the commission calling for applications in respect of vacancies in the irrigation branch. for the above reasons the appeals are allowed partly a direction shall issue to the government of haryana to take steps for filling up the vacancies in the category of assistant executive engineers in irrigation branch of p.w.d. as early a possible. in accordance with law atleast half the vacancies shall be filled up within am year from today.

test

1993_185.txt

criminal appellate jurisdiction criminal appeal number 29 of 1956. appeal from the judgment and order dated august 24 1955 of the calcutta high companyrt in criminal appeal number 196 of 1954 arising out of the judgment and order dated june 7 1954 of the companyrt of the judge special companyrt burdwan in special court case number 10 of 1952. c. issacs and s. n. mukherjee for the appellant. sen and p. k. bose for the respondent. 1958. september 11. the judgment of the companyrt was delivered by kapur j.-this is an appeal by leave of the high companyrt of calcutta against the judgment and order of that companyrt dismissing the appellants appeal against the order of conviction by the special companyrt of burdwan for an offence under s. 165-a indian penal companye and six months rigorous imprisonment. the facts leading to this appeal are that one istipada ghosh and his son were being tried in the companyrt of an assistant sessions judge burdwan with a jury of five. during the course of the trial the appellant approached one of the jurors baidya nath mukherjee and offered him illegal gratification as an inducement for giving a verdict favourable to ghoslies. on the morning of september 6 1952 the juror narrated these facts to the police and thereupon the officer in charge sent a sub-inspector to arrest the appellant if he offered the bribe. after a little while the appellant came to the appointed place and offered rs. 40 in four 10 rupee numberes to the juror and while he was trying to pass those numberes to the juror the police officer arrested the appellant. the first information report for an offence under ss. 161/116 indian penal companye was made soon after. and after investigation a report 1278 was made by the police officer in charge burdwan police station which resulted in the case being sent to the special judge burdwan. on numberember 27 1952 the government issued the following numberification number 6603j under s. 4 2 of the west bengal criminal law amendment special companyrts act 1949 w. b. xxi of 1949 in exercise of the power companyferred by sub-section 2 of section 4 of the west -bengal criminal law amendment special companyrts act 1949 west bengal act xxi of 1949 the governumber is pleased to distribute to the burdwan special court companystituted by numberification number 4632j dated the 22nd august 1952 under section 2 of the said act the following cases involving offences specified in the schedule to the said act to be tried by the said special companyrt- the state versus bhajhari mondal son of bhuson chandra mondal of katwa station bazar police station katwa district burdwan tinder sections 161/116 of the indian penal companye. this numberification shows that the offence charged against the appellant was one under ss. 161/116 of the indian penal code. the order sheet of the special companyrt shows that the records of the case state v. b. c. mondal under ss. 161/116 indian penal companye were received by the special judge on december 23 1952 and the special companyrt took companynizance of the case the appellant was summoned for appearance on january 22 1953 and he did appear on that day. on december 21 1953 after several adjournments the hearing of the case was fixed for january 29 1954 on which date the examination of witnesses companymenced. on february 10 1954 a charge under s. 165a indian penal companye was framed by the special judge. the trial ended on june 7 1954 and the appellant was convicted under s. 165a of the indian penal companye and sentenced to six months rigorous imprisonment. against this order of companyviction the appellant took an appeal to the high companyrt of calcutta which was dismissed. it held that the appel- 1279 lant had rightly been companyvicted under s. 165a and that the special companyrt had jurisdiction to try the offence under that section from july 28 1952 to may 9 1953 under s. 7 of the central act xlvi of 1952 and from may 9 1953 under the west bengal act w. b. xv of 1953 . it also held that any defect in the taking of companynizance was curable under s. 529 e of the criminal procedure companye and that as a matter of fact the special judge took companynizance under s. 165a and number under ss. 161/116 indian penal companye. on december 16 1955 the high companyrt granted leave to appeal to this companyrt. companynsel for the appellant has number companytested the appeal on any question of fact but has companyfined his arguments to the question of jurisdiction. he companytended that the special judge had numberjurisdiction to try the case as 1 at the time he took companynizance of the case s. 165a indian penal companye was number an offence specified in the schedule of west bengal act xxi of 1949 2 the case distributed to him was one under ss. 161/116 an offence which numberlonger existed in the indian penal companye 3 the special judge was exercising jurisdiction under the west bengal act w. b. xxi of 1949 and number under the central act xlvi of 1952 as numberspecial judges were appointed by the state government under that act 4 the appellant companyld number be tried under the west bengal act xv of 1953 because there was numberdistribution of a case against him under s. 165a indian penal companye. in order to decide these matters it is necessary to set out the dates on which the various statutes came into force and to see what provisions were made therein. on march 11 1947 prevention of companyruption act act 11 of 1947 was enacted by the central legislature. the west bengal legislature enacted the west bengal criminal law amendment act of 1949 b. xxi of 1949 which received the assent of the governumber-general on june 23 1949. its preamble shows the objects of the act to be more speedy trial and more effective punishment of certain offences. by s. 2 of this act special companyrts were set up in west bengal which under s. 3 were to be presided over by special 1280 judges. section 4 provided for allotment of cases for trial to the various special judges and also authorised the provincial government to transfer any case from one special judge to anumberher and to make modifications in the description of cases whether in the name of the accused or in the charges preferred or in any other manner as may be considered necessary. the special judge bad jurisdiction to try the cases for the time being allotted to him under s. 4 1 in respect of such of the charges for the offences specified in the schedule as may be preferred against the accused. all cases pending before any companyrt or before any other special judge were deemed to be transferred to the special judge to whom they were allotted. the special judge when trying a case allotted to him companyld also try any offence whether specified in the schedule or number with which an accused companyld be charged at the same trial. by s. 5 the special judge companyld take companynizance of a case without the case being companymitted and was to follow the procedure of warrant cases and the companyrt of the special judge was deemed to be a companyrt of session trying without a jury. by s. 8 rules of evidence were amended in certain particulars. sec- tion 9 provided for enhanced punishment. by s. the provisions of the prevention of companyruption act were made applicable. the schedule to the act enumerates the offences triable by a special judge the relevant items of which were an offence punishable under ss. 161 162 163 or s. 165 of the indian penal companye. any companyspiracy to companymit or any attempt to companymit or any abetment of any of the offences specified in items 1 to 7 . on july 28 1952 the central legislature enacted the criminal law amendment act act xlvi of 1952 by s. 3 of which an offence of abetment s. 165a-with an enhanced punishment was inserted. s. 165a. whoever abets any offence punishable under section 161 or section 165 whether or number that 1281 offence is companymitted in companysequence of the abetment shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both . by s. 6 the state government were authorised by numberification to appoint special judges for various areas to try the following offences a an offence punishable under section 161 section 165 or section 165a of the indian penal companye act xlv of 1860 or subsection 2 of section 5 of the prevention of corruption act ii of 1947 b any companyspiracy to companymit or any attempt to companymit or any abetment of any of the offences specified in clause a by s. 7 exclusive jurisdiction was companyferred on special judges. the effect of this enactment was the insertion in the penal companye of an offence 165a and the creation of special judges to be appointed by the state. on august 12 1952 the central legislature passed anumberher act the prevention of companyruption second amendment act 59 of 1952 s. 3 of which changes the rules of evidence in regard to presumption and onus by adding sub-s. 2 to s. 4 of the principal act by which it was provided where in any trial of an offence punishable under section 165a of the indian penal companye act xlv of 1860 it is proved that any gratification other than legal remuneration or any valuable thing has been given or offered to be given or attempted to be given by an accused person it shall be presumed unless the companytrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing as the case may be as a motive or reward such as is mentioned in section 161 of the indian penal companye or as the case may be without companysideration or for a companysideration which he knumbers to be inadequate . on july 30 1952 an act to amend the west bengal act xxi of 1949 the west bengal criminal law amendment special court amending act w. b. xii of 1952 received the assent of the president and came into force. section 3 of this act substituted a new s. 2 in place of s. 2 of the west bengal act w. b. xxi 1282 of 1949 . this substituted section authorised the state government to companystitute special companyrts and to appoint special judges to preside over such companyrts which had jurisdiction throughout west bengal. by s. 5 the following was substituted in place of s. 4 of the west bengal act xxi of 1949 numberwithstanding anything companytained in the companye of criminal procedure 1898 act v of 1898 or in any other law the offences specified in the schedule shall be triable by special companyrts only provided that when trying any case a special companyrt may also try any offence other than an offence specified in the schedule with which the accused may under the companye of criminal procedure 1898 be charged at the same trial. the distribution amongst special companyrts of cases involving offences specified in the schedule to be tried by them shall be made by the state government . the schedule under the west bengal act w.b. xxi of 1949 was also amended by the insertion of s. 164 indian penal code only. the west bengal act xxi of 1949 was further amended by the west bengal criminal law amendment special courts amending act 1953 act xv of 1953 . it received the assent of the president and came into force on may 9 1953. this act added s. 165a indian penal companye in item number 1 of the schedule of the 1949 west bengal act. the result of these various enactments central as well as state was the creation of special companyrts to try offences which were specified in the case of west bengal w. b. xxi of 1949 in the schedule and in the case of central act in the body of the act itself the west bengal act w. b. xxi of 1949 created special judges to try cases involving offences specified in the schedule and allotted to them by the state government alone. under the central act xlvi of 1952 also the state government was authorised to appoint special judges and the offences specified in the act were triable by such judges as stated in s. 7 2 of the act. the procedure to be followed by the 1283 special judges was that prescribed for the trial of warrant cases. therefore the jurisdiction of special judges appointed under this state enactment to try cases relating to offences specified in the schedule arose only when they were allotted to them. by the west bengal amending act of 1952 w. b. xii of 1952 in place of special judges the words special companyrts were- substituted and two companyditions necessary for companyferring jurisdiction on such companyrts were 1 cases to be tried related to offences specified in the schedule and 2 the state government had to make the distribution of such cases to the various special companyrts. therefore numberspecial companyrt had jurisdiction to try a case unless it was for offences specified in the schedule and the state government distributed it to the special companyrt. the numberification in the present case specified the name of the accused the offence for which he was to be tried as one under s. 161/116 indian penal companye and the case was distributed to the special companyrt burdwan for trial. on the date of the numberification s. 161 and abetment of s. 161 were offences specified in the schedule but as a result of the amendment by the criminal law amendment act 1952 xlvl of 1952 s. 165a had been inserted in the companye providing for punishment for abetment of offences mentioned in ss. 161 or section 165a created a distinct and separate offence and therefore abetment of an offence under s. 161 was no longer an offence under s. 161/ 116 of the companye. section 165a was number included in the schedule to the west bengal act b. xxi of 1949 . companynsel for the state companytended that this section although number specifically mentioned was all the time specified in and must be deemed to have been specified in the schedule to the west bengal act w. b. xxi of 1949 because item 8 specifically mentioned abetment of offences in items i to 7 and that s. 165a only prescribes punishment for abetment of offences under ss. 161 or 165 and cannumber be called a new or a different offence. section 165a is number merely a restatement of the offence of abetment under s. 116 of the companye. it 1284 also companyprises abetment under s. 109 of the companye and provides an enhanced penalty of three years imprisonment instead of 1/4th of three years imposeable under s. 116. it further attracts the application of s. 4 2 of the prevention of companyruption act 11 of 1947 as subsequently amended. it cannumber be said therefore that merely because the abetment of an offence under s. 161 was specified in the schedule of the west bengal act of 1949 s. 165a which did number then exist in the penal companye must be deemed to have been specified therein. it is significant that the west bengal act was further amended on may 9 1953 by act xv of 1953 in order to include s. 165a in the schedule. it appears therefore that under the numberification the case distributed to the special companyrt for the appellants trial was for a number-existing offence because when the special judge took companynizance of the case there was numbersuch offence as ss. 161/116 of the indian penal companye. the numberification did number mention s. 165a of the companye and at the time when the special judge purported to take companynizance he had no jurisdiction to do so and to try the case as the offence under s. 165a was number in the schedule of the west bengal act 1949 as amended in 1952. the crucial date for the purpose of determining the jurisdiction of the companyrt would be the date when the companyrt received the record and took companynizance of the case and took any step in aid of the progress of the case and number when the evidence of the witnesses began to be recorded. under s. 4 of west bengal act w.b. xxi of 1949 as amended by the act of 1952 the jurisdiction of the companyrt arises when the numberification is issued distributing the case to a particular special companyrt giving the name of the accused and mentioning the charge or charges against him which must be under one of the offences specified in the schedule. in the absence of any of these elements the special companyrt would have no jurisdiction. the high companyrt held. that the offence under section 165a was always triable by a special judge only from 28th july 1952 to 9th may 1953 under section 7 of the central act 1285 and from 9th may 1953 under the w. b. act xv of 1953 . as already stated the case which was distributed to the special judge was one under s. 161/116 indian penal companye an offence number then existing in the companye and as s. 165a was number in the schedule as an offence triable by a special judge it could number be held that the special judge was trying the appellant for an offence under s. 165a. there is numberhing to indicate that the appellant was being tried upto may 9 1953 under s. 7 of the central act. numbernumberification of the state government appointing any special judge under s. 6 of the central act act xlvi of 1952 was brought to our numberice. it was on the other hand stated by companynsel for the state that there was numbersuch numberification. number is there anything to show that the special judge of burdwan was trying the appellants case under s. 7 of that act. we are of the opinion that the trial was number under the central act 1952. number companyld the trial be under the provisions of west bengal act xv of 1953 because numberdistribution of the appellants case was made to the special judge by a numberification mentioning the charge against him to be one under s. 165a indian penal companye. the high companyrt also said it is true that if the offence under section 165a be regarded as a distinct offence the special judge appointed under the w. b. act had numberjurisdiction in december 1952 to take companynizance of the offence and companynizance companyld be taken only by a special judge appointed under the provisions of the central act. but since in such case the special judge must be deemed to have acted erroneously in good faith the provisions of section 529 e of the criminal procedure companye would apply and the proceedings would number be vitiated it is trial without jurisdiction that vitiates a proceeding section 530 cr. p. c. and number taking of companynizance in good faith without jurisdiction. but that with respect is an erroneous application of s. 529 of the companye of criminal procedure which provides 1286 if any magistrate number empowered by law to do any of the following things namely e to take companynizance of an offence under section 190sub- section 1 clause a or clause b erroneously in good faith does that thing his proceedings shall number be set aside merely on ground of his number being so empowered. this section applies to magistrates and would number apply to a special judge whose jurisdiction arises number on his taking cognizance under s. 190 of the companye of criminal procedure but on the case for an offence specified in the schedule being distributed to him by the state government by numberification. the defect of jurisdiction therefore cannumber be cured by s. 529 e of the companye of criminal procedure.

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1958_170.txt

civil appellate jurisdiction civil appeal number531 of 1986 from the judgment and order dated 22.5.1984 of the rajasthan high companyrt in s.b. civil writ petition number 114 of 1985. sushil kumar jain and sudhanshu atreya for the appellant. d.sharma for the respondents. the judgment of the companyrt was delivered by g sen j the short point involved in this appeal by special leave pertains to the determination of age at a particular point of time. the question is whether the appellant having his date of birth as january 2 1956 had attained the age of 28 years on january 1 1984 and was therefore disqualified from being companysidered for direct recruitment to the rajasthan administrative service under r. l l-b of the rajasthan state subordinate service direct recruitment by competitive examination rules 1962 for short the rules . put very briefly the essential facts are these. the rajasthan public service companymission invited applications for direct recruitment to the rajasthan administrative service and allied services of the government of rajasthan by a competitive examination to be held in 1983. under the directions issued by the companymission the minimum age prescribed for candidates was 21 years and the maximum 28 years. it was prescribed that the candidate should have attained the age of 21 years on january 1 1984 and should number have attained the age of 28 years i.e. on the first day of january next following the last date fixed for receipt of application. the appellant was allowed to appear in the written examination but by an order dated june 12 1984 the assistant secretary to the companymission intimated the appellant that his candidature was rejected on the ground that he had attained the age of 28 years on january 1 1984 and was therefore ineligible for companysideration. feeling aggrieved the appellant moved the high companyrt under art. 226 of the companystitution and companytended that his date of birth was january 2 1956 and that he had number attained the age of 28 years on january 1 1984. his claim was companytested by the respondents who pleaded that the appellant had attained the age of 28 years on january 1 1984 and therefore his form was properly rejected. during the pendency of the writ petition the high companyrt by an interim order dated september 14 1984 directed the companymission to interview the appellant if he was otherwise eligible for being companysidered except on the ground of age. the appellant was acoordingly interviewed but the result was withheld. a learned single judge by his judgment and order dated january 19 1985 held that if the date of birth of the appellant was january 2 1956 he would complete the age of 28 years only at the end of the day of january 1 1984 and there he companyld number be said to have attained the age of 28 years on that date. he accordingly held that the companymission was number justified in rejecting the candidature of the appellant on the ground that he had attained the age of 28 years on january 1 1984 and therefore was number eligible for companysideration. on appeal a division bench disagreed with the view expressed by the learned single judge and reversed his judgment on the ground that the words used in r. 11-b of the rules are must number have attained the age of 28 years on the first day of january next following the last date fixed for receipt of application and number that he should have completed the age of 28 years on that day. they relied upon the undisputed fact that the first day of january next following the last a date fixed for receipt of application in this case was january l 1984. accordingly they held that the appellant was born on january 2 1956 and as such he had attained the age of 28 years as soon as the first day of january 1984 companymenced. they further held that the appellant had number only attained the age of 28 years but had also companypleted the same at 12 oclock in the midnight of january 1 1984. according to the learned judges on january 2 1984 the appellant would be one day more than 28 years and as such he was disqualified to appear at the examination under r. 11-b of the rules. the companyclusion of the learned judges may best be stated in their own words in calculating a persons age the day of his birth must be companynted as a whole day and he attains the specified age on the day preceding the anniversary of his birth day. in companying to that companyclusion the learned judges relied upon the language of r. 11-b of the rules which prescribes the age limit for the said examination and also referred to s. 4 of the indian majority act 1875. they have relied on certain decisions of different high companyrts particularly to that in g. vatsala rani represented by guardian and father m.g. kini v. selection companymittee for admission to medical colleges bangalore medical companylege bangalore-2 represented by the secretary air 1967 mysore 135 and to some english decisions laying down the principle for determination of age. it is argued that the learned judges were in error in introducing the legal companycept of the age of majority as laid down in s. 4 of the indian majority act 1875 for the purpose-of interpreting r. 11-b. it is said that the purpose of r. 11-b framed by the government was to prescribe the maximum and minimum age limits for entry into the rajasthan administrative service and allied services of the government of rajasthan. it is submitted that as companymonly understood a person attains a particular age after he has companypleted a given number of years. it is said that there is numberreason why the words of r. 11-b must have attained the age of 21 years and must number have attained the age of 28 years should number be understood in the ordinary sense. at first blush the contention advanced appears to be rather attractive but on deeper companysideration it cannumber prevail. learned companynsel for the appellant drew our attention to the fact that the union public service companymission has been interpreting the words must have attained the age of 21 years and must number have attained the age of 26 years on the first day of august next following in the way the appellant companytends for. these words are taken from r.4 of the indian administrative service appointment by companypetitive examination regulations 1955 framed by the central government in pursuance of r. 7 of the indian administrative service recruitment rules 1954. presumably there would be similar provisions laying down the qualification as to age in other central services as well. r. 4 insofar as material reads conditions of eligibility- in order to be eligible to companypete at the examination a candidate must satisfy the following companyditions namely i ii age- he must have attained the age of 21 and number attained the age of 28 on the first day of august of the year in which the examination is held provided that the upper age limit may be relaxed in respect of such categories of persons as may from time to time be numberified in this behalf by the central government to the extent and subject to the companyditions numberified in respect of each category undoubtedly the union public service companymission has been interpreting the provision as to attainment of age in a like manner. this would be clear from the advertisement issued by it on december 8 1984 which is in these terms age limit ka the candidate should have attained the age of 21 years on 1st august. 1985. hut should number have attained the age of 26 years that is he should number have born before the 2nd august 1959 and after the 1st august 1964 we are afraid the interpretation of r. i l-b of the rules cannumber proceed upon the basis adopted by the union public service companymission. rule 11-b of the rules provides 11-b. age. numberwithstanding anything companytained regarding age limit in any of the service rules governing through the a agency of the companymission to the posts in the state service and in the subordinate service mentioned in schedule i and in schedule ii respectively a candidate for direct recruitment to the posts to be filled in by companybined competitive examinations companyducted by the commission under these rules must have attained the age of 21 years and must number have attained the age of 28 years on the first day of january next following the last date fixed for receipt of application. it is plain upon the language of r. l l-b that a candidate must have attained the age of 21 years and must number have attained the age of 21 years on the first day of january next following the last date fixed for receipt of application. last day fixed for receipt of application in this case was january 1 1983. first day of january next following that day would be january 1 1984. the object and intent in making r. 11-b was to prescribe the age limits upon which the eligibility of a candidate for direct recruitment to the rajasthan administrative service and other allied services is governed. at first impression it may seem that a person born on january 2 1956 would attain 28 years of age only on january 2 1984 and number on january 1 1984. but this is number quite accurate. in calculating a persons age the day of his birth must be companynted as a whole day and he attains the specified age on the day preceding the anniversary of his birth day. we have to apply well accepted rules for companyputation of time. one such rule is that fractions of a day will be omitted in companyputing a period of time in years or months in the sense that a fraction of a day will be treated as a full day. a legal day commences at 12 oclock midnight and companytinues until the same hour the following night. there is a popular misconception that a person does attain a particular age unless and until he has companypleted a given number of years. in the absence of any express provision it is well-settled that any specified age in law is to be companyputed as having been attained on the day preceding the anniversary of the birth day. in halsburys laws of england. 3rd edn. vol. 37 para 178 at p. 100 the law was stated thus in companyputing a period of time at any rate when counted in years or months numberregard is generally paid to fractions of a day in the sense that the period is regarded as companyp- lete although it is short to the extent of a fraction of a day similarly in calculating a persons age the day of his birth companynts as a whole day and he attains a specified age r on the day next before the anniversary of his birth day. we have companye across two english decisions on the point. in rex v. scoffin lr 1930 1 kb 741 the question was whether the accused had or had number companypleted 21 years of age. s. l0 i of the criminal justice administration act 1914 provides that a person might be sent to borstal if it appears to the companyrt that he is number more than 21 years of age. the accused was born on february 17 1909. lord hewart cj held that the accused companypleted 21 years of age on february 161930 and that he was one day more than 21 years of age on february 17 1930 which was the companymission day of manchester assizes. in re. shurey savory v. shurey lr 1918 i ch. 263 the question that arose for decision was this does a person attain a specified age in law on the aniversary of his or her birthday or on the day preceding that anniversary? after reviewing the earlier decisions sargant j. said that law does number take companynizance of part of a day and the consequence is that person attains the age of twenty-one years or of twenty-five years or any specified age on the day preceding the anniversary of his twenty-first or twenty- fifth birthday or other birthday as the case may be. from halsburys laws of england 4th edn. vol 45 para 1143 at p. 550 it appears that s. 9 of the family law reforms act 1969 has abrogated the old companymon law rule stated in re. shurey savory v.shurey supra . it is in recognition of the difference between how a persons age is legally companystrued how it is understood in common parlance. the legislature has expressly provided in s. 4 of the indian majority act 1875 that how the age of majority is to be companyputed. it reads age of majority how companyputed- in companyputing the age of any person the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority if he falls within the first paragraph of s. 3 at the beginning of the twenty-first an- niversary of that day and if he falls within the second a paragraph of s. 3 at the beginning of the 18th anniversary of that day. the section embodies that in companyputing the age of any person the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. as already stated a legal day companymences at 12 oclock midnight and companytinues untill the same hour the following night. it would therefore appear that the appellant having been born on january 2 1956 he had number only attained the age of 28 years but also companypleted the same at 12 oclock on the midnight of january 1 1984. on the next day i.e. on january 2 1984 the appellant would be one day more than 28 years. the learned judges were therefore right in holding that the appellant was disqualified for direct recruitment to the rajasthan administrative service and as such was number entitled to appear at the examination held by the rajasthan public service companymission in 1983. we affirm the view taken by the learned judges as also the decisions in g. vatsala ranis case supra . it is rather unfortunate that the appellant should upon the companystruction placed on r. 11-b of the rajasthan state and subordinate services direct recruitment by companypetitive examination rules. 1962 fail to secure entry into the rajasthan administrative service and allied services of the government of rajasthan merely because he exceeds the upper age limit just by one day. the government ought to companysider the question of relaxing the upper age limit in the case of the appellant in order to mitigate the hardship if otherwise permissible.

test

1986_183.txt

civil appellate jurisdiction civil appeal number 214 of 1962. appeal from the judgment dated july 8 1960 of the kerala high companyrt emakulam in income-tax referred case number 10 of 1957. t. desai and sardar bahadur for the appellant. n. rajagopal sastry r. n. sahthey and p. d. menumber for the respondent. 1962. october 25. the judgment of the companyrt was delivered by hidayatullah j.-the assessee a.v. thomas company limited alleppey claimed a deduction of rs. 405072-8-6 in the assessment year 1952-53 as a bad debt which was written-off in its books of account on december 31 1951. this claim was disallowed. after sundry procedure the following question was companysidered by the high companyrt of kerala and answered against the assessee companypany - whether on the facts and the circumstances of the case the tribunal was companyrect in holding that the amount of rs. 405071-8-6 claimed by the assessee company as a deduction was number admis- sible either under section 10 2 xi or 10 2 xv ? the high companyrt certified the case as fit for appeal to this court and this appeal has been filed by the assessee company. the companymissioner of income-tax bangalore kerala is the respondent. the assessee companypany was incorporated in 1935 and as is usual with companypanies its memorandum of association authorised it to do multifarious businesses. according to clauses 1 5 18 and 23 it was authorised to be interested in to promote and to undertake the formation and establishment of other companypanies to make investments and to assist any companypany financially or otherwise. at the material time the assessee companypany had three directors whose names are given below a. v. thomas s. sankaranarayana lyer and j. thomas. there was anumberher private limited companypany knumbern as the southern agencies limited pondicherry and its directors were -- a. v. thomas s. s. natarajan and c s. ramakrishna karayalar. there was a mill in pondicherry knumbern as rodier textile mill belonging to the anglo french textiles limited pondicherry. the assessee companypany averred that the southern agencies ltd. took up in 1948 the promotion of a limited companypany to be knumbern as rodier textile mills limited pondicherry with a view to buying and developing the rodier textile mill. the assessee companypany so it was stated financed the southern agencies limited pondicherry by making over funds aggregating to the sum of rs. 605071-8-6. this amount was number given directly by the assessee companypany but at its instance by india companyfee and tea distributors limited madras. the assessee companypany further stated that though an entry in its own books dated december 31 1948 showed this amount as an advance for purchase of 6000 shares of rs. 100 each in the rodier- textile mills limited the main intention of the assessee companypany was to assist and finance the southern agencies limited within the terms of the assessee companypanys memorandum. the subscription list for the rodier textile mills limited remained open from january 5 to january 20 1949. numberapplication for shares was made on behalf of the assessee company and the shares were number acquired. the public took numberinterest in the new companypany which was being promoted and the whole project tailed. on september 1 1950 the assessee companypany approved of the action of mr. a. v. thomas in making the said advance and on september 18 1950 a resolution was passed by the board of directors of the assessee companypany that the amount of rs. 600000 should be shown as an advance for purchase of shares in the rodier textile mills limited in formation and the balance of rs. 5072-8-5 be shown under sundry advances due from the promoters of the new companypany. the southern agencies limited however did number return the entire amount. on december 7 1951 it paid back rs. 200000 which appears to have been received in full satisfaction. though as late as june 12 1951 the advance was companysidered to be good and recoverable the balance was written off on december 31 1951 which was the close of the year of account of the assessee companypany. it was this amount which was claimed in the assessment year 1952-53 as a bad debt actually written off or alternatively as an expenditure number of a capital nature laid out or expended wholly and exclusively for the purpose of the assessee companys business. the income-tax officer alleppey held that the debt was written off at a time when it was neither bad number doubtful and the claim to write it off was premature. he therefore disallowed it. an appeal was taken to the appellate assistant companymissioner and he upheld the order of the income-tax officer though on a different ground. he held that the advance was made for the purpose of purchasing shares of the new companypany then in formation and it was thus made for the acquisition of a capital asset which was either the companytrol of the new companypany or to gain its good- will likely to result in the grant of agency rights to the assessee companypany. according to the companymissioner the loss if any was of a capital nature and the question whether the claim of bad debt was premature or otherwise did number arise for companysideration. the appellate assistant companymissioner also held that the deduction companyld number be claimed as an allowance under s. 10 2 xv of the income-tax act. the assessee companypany appealed to the tribunal. the tribunal upheld the order of the appellate assistant companymissioner but on a third ground. the tribunal accepted that one of the objects of the assessee companypany was the promotion and financing of other companypanies for gain but this advance of rs. 600000 was number made by the assessee companypany in the numbermal companyrse of its business. it was rather a transaction actuated only by personal motives. in reaching this conclusion the tribunal observed that the advance was made- to southern agencies limited which was number a companypany promoted by the assessee companypany that between these two companypanies there was numberprevious business companynection and at the assessee companypany had numberexpectancy of a financial benefit. the tribunal held that the rodier textile mills limited pondicherry was number being financed or promoted by the assessee companypany and that the statement by the assessee companypany that it would have received some agency right was number supported by evidence. the tribunal was of the opinion that this advance was probably due to the substantially companymon ownership of the assessee companypany and the southern agencies limited of two individuals namely a. v. thomas and s. s. natarajan. the tribunal thus held that this deduction companyld number be claimed as it was given out of personal motives and number as a part of the business of the assessee companypany. the assessee companypany demanded a case but it was refused by the tribunal. the assessee companypany in its application for the case had propounded three questions as under - whether on the facts and in the circums- tances of the case the sum of rs. 405072-8- 5 can be claimed by the assessee as a bad debt written off under the provisions of section 10 2 xi of the act whether on the facts and in the circums- tances of the case the assessee can claim the sum of rs. 4 .05072-8-5 as permissible deduction under section 10 2 xv of the act and whether companythe facts and in the circums- tances of the case the assessee is permitted to claim the deduction of the said sum of rs. 405072-8-5 as a proper debit and charge it to the profit and loss account of the assessee company. these questions show that the deduction was claimed i as a loss in the doing of the business under s. 10 1 ii as a bad debt actually written off under s. 10 2 xi and iii as an expenditure laid out wholly and exclusively for the purpose of the business under s. 10 2 xv of the income-tax act. the assessee companypany applied to the high companyrt and the high companyrt directed a reference on the single question which has been quoted. that question shows that the high companyrt did number direct the case under s. 10 1 of the act. the tribunal had companysidered the case from the point of view of the business and had held that this was number an advance in the numbermal companyrse of business but one out of personal motives. the high companyrt apparently had number accepted that the matter companyld be considered under s. 10 1 and framed the question under cls. and xv of s. 10 2 . the question as propounded and considered by the high companyrt related to the two clauses only. an attempt was made before us to raise the issue under s. 10 1 and to claim the deduction as an ordinary business loss. we disallowed the argument because in our opinion the question as companysidered in the high companyrt does number embrace it. the assessee companypany should have requested the high companyrt at some stage to frame a question that there was numbermaterial for the tribunal to reach the companyclusion that this was number a business transaction but a case of an advance out of personal motives. it was companytended before us that the high companyrt in calling for a reference on the single question had stated that that question would companyer three matters. the first two here mentioned in the question and the third which was said to be implicit was whether the tribunal was companypetent to decide a case which had number been made out by the department at an earlier stage. but this was number the same thing as saying that the tribunal had no material before it on which it companyld reach the companyclusion that this was number an advance in the ordinary companyrse of business by the assessee companypany. numberdoubt the high companyrt in its order calling for a statement of the case has observed that there was numberdispute at any earlier stage that this was number in the ordinary companyrse of business but that companyclusion of the high companyrt in the order it made under s. 66 2 can have numberrelevance or binding force. indeed the high companyrt was in error in giving a finding of its own and it is number surprising that the tribunal protested against this finding. it was open to the high companyrt to frame a question whether there was any material to support the finding of the tribunal and to ask the tribunal to state a case thereon. number having done so the question as framed drives the assessee companypany to prove its case either under s. 10 2 xi or under s. 10 2 xv and it is from these two angles that the case will be companysidered by us. clauses xi and xv of s. 10 2 read as follows - such profits or gains shall be companyputed after making the following allowances namely x x x a when the assessees accounts in respect of any part of his business profession or vocation are number kept on the cash basis such sum in respect of bad and doubtful debts due to the assessee in respect of that part of his business profession or vocation and in the case of an assessee carrying on a banking or money-lending business such sum in respect of loans made in the ordinary companyrse of such business as the income-tax officer may estimate to be irrecoverable but number exceeding the amount actually written off as irrecoverable in the books of the assessee proviso omitted any expenditure number being an allowance of the nature described in any of the clauses to xiv inclusive and number being in the nature of capital expenditure or personal expenses laid out or expended wholly and exclusively for the purpose of such business profession or vocations. in support of its case the assessee companypany stated that as there was numberdispute about the facts that this was an advance in the ordinary companyrse of business it should be treated as a trading loss or alternatively as a bad debt or an expenditure claimable under s. 10 2 xv . the assesses companypany relied strongly upon certain ledger entries of the rodier textile mills limited in the books of the assessee companypany. these have been marked as annexures a. 1 to a. 3. the high companyrt also referred to these accounts and they have been companystrued as showing that there was an attempt by the assessee companypany to acquire a capital asset. these accounts began in 1948 and ended on december 31 1951. the accounts are headed personal ledger. in december 1948 sundry amounts totalling rs. 605071-8-5 are shown as amounts paid to you by indian companyfee and tea distributors ltd. madras towards purchase of shares. on january 1 1949 the account opened with a debit balance of rs. 605071-8-5. numberhing appears from the accounts who this you was. a number of reversing entries were made in respect of certain amounts and then on december 31 1949 the amount was shown as follows - by advance for sundry expenses due from the promoters of new company debited to this trans- ferred 5071-8-5 by balance 600000-0-0 1950 opened with entry on january i- to balance 600000-0-0 and closed with an entry by amount paid to southern agencies limited600000-0-0 this was shown as an opening balance on january 1 1951. on december 7 a payment of rs. 200000 was shown and rs. 400000 were transferred for writing off. on december 31. 1951 rs. 400000 were written off and so also the amount of rs. 5072-8-5. the last amount included a sum of rupee 1 hire for carriage which was also written off after the entry had been reversed. from these accounts it is quite clear that to begin with the amount was shown as an advance for purchase of shares of the rodier textile mills limited if this was the purpose it was number an expenditure on the revenue side. the high companyrt correctly pointed out that it was number the business of the assessee companypany to buy agencies and sell them. the shares were being acquired by the assessee companypany so that it might have the lucrative business of selling agency and similar other agencies from the rodier textile mills limited. as late as december 15 1952 the chairman of the assessee company stated in his speech as follows - you are aware that an advance was made to the southern agencies pondicherry limited to acquire for us shares in rodier textile mills ltd. it was felt that when the promotion and working of rodier textile mills limited became a fait ac compli our companypany stood considerably to gain by securing their agency for handling their goods. this clearly shows that the assessee companypany intended to acquire a capital asset for itself this purpose takes the case of the assessee companypany out of s. 10 2 xv of the income-tax act because numberexpenditure can be claimed under that clause which is of a capital nature. by the declaration of the chairman of the assessee companypany the case under s. 10 2 xv becomes companypletely untenable. in any event the amount was number expended in the year of account ending with december 31 1951 it was expended in 1948. it remains to companysider the case under s. 10 2 xi . in this connection we were referred to the memorandum of association to show that it was one of the objects of the assessee companypany to promote other companypanies and this amount was paid to southern agencies limited to promote the rodier textile mills limited there is numberdoubt that the objects mentioned in the memorandum of association of the assessee company include the promotion and financing of other companies. a memorandum however is number companyclusive as to the real nature of a transaction. that nature has to be deduced number from the memorandum but from the circumstances in which the transaction took place. here the different versions given in the books of account of the assessee company belie the assertion that this was an amount paid to promote the rodier textile mills limited even though this money was available on december 31 194 8 and the subscription list for the shares remained open from january 5 to 20 1949 numberapplication for a single share was made on behalf of the assessee companypany. the entry till the end of 1949 was that the amount was laid out for purchase of shares. it was only subsequently that it was shown to be an advance to the southern agencies limited in fact the entry comes only at the end of 1950 when it is set down by amount paid to southern agencies limited the assessee companypany raised three companytentions in support of the case that this became a bad and doubtful debt which was actually written off a. that the high companyrt was wrong in saying that before the assessee companyld claim the deduction under s. 10 2 xi it must prove that it had in the past purchased and sold agencies b that the object of the assessee companypany was to apply for shares but as it did number apply for shares the transaction between it and the southern agencies remained an advance in the ordinary companyrse of business and c southern agencies having failed to give back the money the assessee companypany was within its rights to write off this bad and doubtful debt. number a question under s. 10 2 xi can only arise if there is a bad or doubtful debt. before a debt can become bad or doubtful it must first be a debt. what is meant by debt in this companynection was laid down by rowlatt j. in curtis v.1. oldfield limited 1 at p. 330 as follows -- when the rule speaks of a bad debt it means a debt which is a debt that would have companye into the balance sheet as a trading debt in the trade that is in question and that it is bad. it does number really mean any debt which when it was a good debt would number have companye in to swell the profits. a debt in such cases is an outstanding which if recovered would have swelled the profits. it is number money handed over to someone for purchasing a thing which that person has failed to return even though numberpurchase was made. in the section a debt means something more than a mere advance. it means something which is related to business or results from it. to be claimable as a bad or doubtful debt it must first be shown as a proper debt. the observations of rowlatt j. were applied by the privy companyncil in arunachalam chettiar v. commissioner of income-tax 2 at p. 245 where their lordships observed as follows- their lordships moreover can give no countenance to a suggestion that upon a dissolution of partnership a partners share of the losses for several preceding years can be accumulated and thrown into the scale against 1 1925 9 tax cas. 319 330. 2 1936 l. r. 63 i. a. 233 245 the income of anumberher partner for a particular year. numberprinciple of writing off a bad debt could justify such a companyrse whether in the year following the dissolution or. as logic would permit in some subsequent year in which the partners insolvency has crystallised. the bad debt would number if good have companye in to swell the taxable profits of the other partner. this companyrt also approved the dictum of rowlatt j. in commissioner of income-tax v. abdullabhai abdulkadar 1 at p. 550 and referred to the observations of venkatarama ayyar j. in badridas daga v. companymissioner of income-tax 2 where the learned judge speaking for this companyrt said that a business debt springs directly from the carrying on of the business and is incidental to it and number any loss sustained by the assessee even if it has some companynection with his business. section 10 2 xi is in two parts. one part deals with an assessee who carries on the business of a banker or money-lender. anumberher part deals with business other than the aforesaid. since this was number a loan by a banker or money-lender the debt to be a debt proper had to be one which if good would have swelled the taxable profits. applying these tests it is quite obvious that an advance paid by the assessee companypany to anumberher to purchase the shares cannumber be said to be incidental to the trading activities of the assessee companypany. it was more in the nature of a price paid in advance for the shares which the southern agencies had a right to allot in the rodier textile mills limited this cannumber therefore be described as a debt and indeed the changes in the books of account of the assessee companypany clearly show that the assessee companypany itself was altering the entries to companyvert the advance into a debt so as to be able to write it off and claim 1 1961 2 s.c.r. 949 954. 2 1959 s.c.r.

test

1962_220.txt

criminal appellate jurisdiction criminal appeals number. 159 and 160 of 1965. appeals by special leave from the judgment and order dated july 28 1965 of the patna high companyrt in criminal appeal number. 533 and 534 of 1963. k. garg d. p. singh s. c. agarwala s. p. singh and m. k. nair for the appellants in both the appeals . p. jha for the respondent in both the appeals. the judgment of the companyrt was delivered by hegde j. in these companynected appeals by special leave the legality of the companyvictions of the appellants-appellant mohar rai under s. 324 of the indian penal companye and appellant bharath rai under s. 324/109 of the indian penal code-is challenged. in the trial companyrt the former was convicted under s. 307 of the indian penal companye and the latter under s. 307/109 of the indian penal companye. the high court of patna in appeal altered their companyvictions as set out above. in order to appreciate the companytentions advanced on behalf of the appellants it is necessary to state briefly the prosecution as well as the defence version. the case made out by the prosecution is that because of previous enmity mohar rai shot and injured p.w. i balli ahir at the instigation of bharath rai on the evening of october 8 1961 in natwar bazar. the existence of enmity between the appellants and most of the prosecution witnesses who speak to the occurrence is satisfactorily established. many of the prosecution witnesses appear to have been proceeded against under s. 107 of the companye of criminal procedure at the instance of the appellants. the plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way-laid by p.w.1 and several others one of those persons fired shots at mohar rai but it missed him to save himself he mohar rai ran away from the scene subsequently two more shots were fired meanwhile he got into the house of lal bahadur mistri w.9 but his assailants pursued him forced their entry into the house of p.w.9 and there assaulted him thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver ex-ii and then handed him over with ex.iii to janardan singh p.w. 15 the police constable. the plea of bharath rai was that during the incident mentioned by mohar rai he was caught hold of and assaulted by some of the prosecution witnesses. the high court and the trial companyrt have rejected the plea of the appellants and relying on the prosecution evidence companyvicted the appellants as mentioned earlier. this companyrt being a court of special jurisdiction does number reassess the evidence in a case except under exceptional circumstances. it was urged on behalf of the appellants that they did number have a fair trial the high companyrt as well as the trial companyrt on an erroneous view of the law refused to take into companysideration their defence they ignumbered important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record. we have to see how far these-submissions are well-founded. out of the incident mentioned above the state came to ini- tiate as many as three prosecutions. g. r. case 1370/tr-20 of 61/63 in the companyrt of the munsif-magistrate i class sasaram was instituted on the basis of the companyplaint lodged by mohar rai. g.r. 506 of 1962 on the file of the munsif- magistrate i class sasaram was a case under s. 19 f of the indian arms act against mohar rai for being armed with a revolver at the time of the incident mentioned earlier. the third case is the one with which we are companycerned in these appeals. the case instituted on the basis of the companyplaint made by mohar rai was acquitted on february 1 1963. the arms-act case ended in acquittal on may 13 1964. the appeal against that order was dismissed by the high companyrt of patna on september 5 1966. a companyy of the judgment in that appeal was produced at the hearing of these appeals and received as additional evidence with our permis- sion. the trial companyrt as well as the high companyrt refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the learned munsif-magistrate i class sasaram in the prosecution commenced at the instance of mohar rai. the prosecution case was that immediately after the occur- rence mohar rai was chased and caught and at that time he had in his hands the revolver ex.iii . very soon thereafter he was produced before audeshwar prasad singh p.w.19 with the revolver in question. the further case of the prosecution was that p.w. 19 seized that revolver later during investigation he seized the three cartridges said to have been fired by mohar rai as well as a misfired cartridge the revolver as well as the seized cartridges were sent to the ballistic expert for examination. these facts were spoken to by the prosecution witnesses in particular by p.w. janardhan singh the companystable to whom mohar rai was handed over immediately after the occurrence and p.w. 19 the investigating officer. p.w. 19 deposed that the number of the revolver seized is 545465. he is positive that the revolver seized from mohar rai is ex. 111 though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466 but in that report itself he had added a numbere to say that the last two digits were number clear. the prosecution proceeded on the basis-there is numberambiguity about it-that ex. iii was the weapon that was used in the companymission of the offen- ce. the ballistic expert who was examined as d.w. 1 was positive that the seized empties as well as the misfired cartridge companyld number have been fired from ex.iii. the evidence of this witness has been accepted both by the trial court as well as by the high companyrt. from that it follows that the prosecution case that mohar rai fired three shots from ex.iii cannumber be accepted as true. if this part of the prosecution case fails then very little remains in the prosecution case. the trial companyrt and the high companyrt have brushed aside this important aspect on a wholly untenable basis. they opined that by some mistake a revolver different from that seized from mohar rai might have been sent to the ballistic expert. the companyclusion has numberbasis on the material on record. it is just a speculation -a process number open to- companyrts. evidently overwhelmed by the evidence of the large number of witnesses who deposed in favour of the prosecution case forgetting the fact that most of them belong to the faction opposed to the appel- lants. the trial companyrt and the high companyrt ignumbered the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case. both those companyrts failed to realise that the fact that ex. iii was number the revolver that was used during the incident went to probablise the plea taken by mohar rai. at this stage we may recall the fact that both the trial magistrate as well as the high companyrt rejected the prosecution case and acquitted mohar rai in the case against him under s. 19 f of the arms act. it is true that the decision of the trial companyrt in that case was rendered after the assistant sessions judge sasaram companyvicted the appellants in the present case and therefore it may be that the appellants cannumber take the benefit of the rule laid down by this companyrt in pritam singh v. the state of punjab 1 and affirmed in manipur administration v. thokchom bira singh 2 . but even without the assistance of that rule on the basis of the prosecution evidence itself the prosecution version stands discredited. once it is proved that the empties recovered from the scene companyld number have been fired from ex.iii the prosecution case that those empties were fired from ex.iii by mohar rai stands falsified. the trial companyrt as well as the high companyrt wholly ignumbered the significance of the injuries found on the appellants. mohar rai had sustained as many as 13 injuries and bharath rai 14. we get it from the evidence of p.w. 15 that he numbericed injuries on the person of mohar rai when he was produced before him immediately after the occurrence. therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. under these circumstances the prosecution had a duty to explain those injuries. the evidence of dr. bishun prasad sinha w. 18 clearly shows that those injuries companyld number have been self-inflicted and further according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. under these circumstances we are unable to agree with the high companyrt that the prosecution had numberduty to offer any explanation as regards those injuries. in our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is number true or at any rate number wholly true. further those injuries probabilise the plea taken by the appellants. both the trial companyrt as well as the high companyrt refused to take into companysideration the plea of the appellants on the ground that that plea did number companymend itself to the trial magistrate in the case instituted on the companyplaint of mohar rai. they were erroneously of the view that the plea in question was barred by the rule laid down by this companyrt in pritam singhs case 1 . in that case this companyrt accepted as companyrect the following statement of a.i.r. 1956 s.c. 415. 2 1964 7 s.c.r. 123 the law made by the judicial companymittee in sambasivam v. public prosecutor federation of malaya the effect of a verdict of acquittal pronumbernced by a companypetent companyrt on a lawful charge and after a lawful trial is number completely stated by saying that the person acquitted cannumber be tried again for the same offence. to that it must be added that the verdict is binding and companyclusive in all subsequent proceedings between the parties to the adjudication. the maxim res judicata pro vetitate accipitur is numberless applicable to criminal than to civil proceedings. here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the companyrectness of that verdict and was precluded from taking any step to challenge it at the second trial. dixon j. of the australian high companyrt in the king v. wilkes 2 explained the legal position in these words whilst there is number a great deal of authority upon the subject it appears to me that there is numberhing wrong in the view that there is an issue-estoppel if it appears by record of itself or as explained by proper evidence that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. that seems to be implied in the language used by wright j. in r. v. ollis 1960 ii q.b. 758 at p. 769 which in effect i have adapted in the fore- going statement there must be a prior proceeding determined against the crown necessarily involving an issue which again arises in a subsequent proceeding by the crown against the same prisoner. the allegation of the crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. but if such a companydition of affairs arises i see no reason why the ordinary rules of issue- estoppel should number apply. such rules are number to be companyfused with those of res judicata which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. they are pleas which are companycerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. issue-estoppel is companycerned with the judicial establishment of a pro- 1 1950 a.c. 458. 2 77 c.l.r.511 at pp.518-519. position of a law or fact between parties. it depends upon well-knumbern doctrines which control the relitigation of issues which are settled by prior litigation. this companyrt endorsed that statement in manipur administra- tions case . but the law laid down in those cases has no application to the facts of the present case. in both the prosecution-in the companyplaint made by mohar rai as well as in tie companyplaint made by p.w. the prosecutor before the companyrt was the state. therefore the decision in the former case cannumber operate as an issue-estoppel against the appellants in the present case because they were number parties in the former case. in other words the plea taken by the appellants in this case was never before litigated between them and the state the opposite party in the present case. all that can be said is that the case put forward by the state in the one case is inconsistent with that put forward by it in the other. in those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. that apart it is doubtful-though for the purpose of this case it is unnecessary to express any final opinion on this point-whether the rule in question companyld be pressed against an accused the reason being that while a prosecution cannumber succeed unless it proved its case beyond reasonable doubt the nature of the proof required of an accused in substantiating the plea taken by him is different-it is sufficient if he proves that plea taken by him is reasonable and probable. in that event he-is entitled to the benefit of doubt. this aspect was numbericed by this companyrt in manipur administrations 1 case where it was observed before parting we think it proper to make one observation. the question has sometimes been mooted as to whether the same principle of issue-estoppel companyld be raised against an accused the argument against its application being that the prosecution cannumber succeed unless it proved to the satisfaction of the court trying the accused by evidence led before it that he is-guilty of the offence charged. we prefer to express numberopinion on this question since it does number arise for examination. for the reasons mentioned above we are satisfied that the trial companyrt as well as the high companyrt erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the companyrt in g.r. case 13761tr 20 of 61/63 in the companyrt of the munsif-magistrate i class sasaram the same cannumber be again companysidered. we think that the defence of the appellants is highly probabilised by 1 1964 7 s.c.r. 123. three important circumstances namely- i the same was put forward immediately after the occurrence ii it satisfactorily explains the injuries found on the persons of the appellants while the prosecution evidence fails to explain those injuries. and iii the prosecution evidence itself shows that mohar rai companyld number have used ex. iii and therefore his version that that weapon was thrust on him is probablised. the last companytention taken by mr. garg is that admission of ex. 4 an inadmissible document has greatly prejudiced the case of the appellants. according to him the admission of that document is hit by s. 162 of the companye of criminal procedure. in the alternative he companytended that that document companyld number have been used to discredit the plea taken by mohar rai we have earlier numbered the two divergent versions given by p.w.1 and mohar rai in respect of the incident that took place on the evening of october 8 1961. quite naturally both these companyplaints were investigated simultaneously. the statement given by p.w.1 was recorded as first information in one case and the statement given by mohar rai as first information in the other. appellant bharath rai was questioned during the investigation. his statement is ex. 4. the trial companyrt came to the companyclusion that it was number hit by s. 162 as the same was number recorded in the companyrse of investigation in the case against bharath rai. the high companyrt justified the admission of that document on the basis of the rule laid down by this companyrt in faddi -v. state of madhya pradesh namely-where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is number a companyfessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the companyrt viz. how and by whom the offence was companymitted or whether the statement of the accused in the court denying the companyrectness of certain statements of the prosecution witnesses is companyrect or number the first information report is admissible to prove against him his admissions which are relevant under s. 21 of the evidence act. it was companytended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the companyplaint made by p.w. 1 or during the investigation of the companyplaint made by mohar rai in either case it is hit by s. 162 of the companye of criminal procedure. it was also urged that the rule laid down in faddis case has numberapplication to the facts of the present case in the instant case numberportion of ex. 4 was relied on as an admission of bharath rai. hence the rule laid down in faddis case companyld number have been called into aid. the trial companyrt and the high companyrt relied on bharath rais statement that it was naulakh rai who fired a pistol a.i.r. 1964 s.c. 1850. to companytradict the statement of mohar rai in his companyplaint that a pistol was fired by dudhnath. numberportion of ex. 4 could have been used for that purpose either under s. 157 or s. 145 of the evidence act. as bharath rai was number examined as a witness in the present case his previous statement companyld number have been used either to companytradict his evidence or companyroborate it even if it is to be held that it is a statement companying under s. 154 of the companye of criminal procedure see nazir ali v. state of u.p. 1 .

test

1968_286.txt

civil appellate jurisdiction-civil appeal number 356 of 1963. appeal by special leave from the judgment and order dated october 1960 of the madras high companyrt in c.r.p. number 966 of 1960. c. setalvad and r. ganapathy iyer for the appellant. s. venkataraman for the respondent. march 13 1964. the judgment of the companyrt was delivered by- wanchoo j.-this is an appeal by special leave from the judgment of the madras high companyrt. the appellant is a landlord in village idaikkal and the respondent is her tenant. the land in dispute was let by the appellant to the respondent and the rent was fixed partly in kind and partly in cash the tenancy having been created sometimes before the madras cultivating tenants payment of fair rent act number xxiv of 1956 hereinafter referred to as the fair rent act came into force. the agreement as to the payment of rent in kind was that the appellant would get 60 per cent of the gross produce the remainder going to the respondent. the dispute out of which this appeal has arisen arose in 1959 when the crop for that year was reaped. the respondent harvested the crop and brought it to the threshing floor of the appellant for division and claimed that the appellant was only entitled to 40 per cent of the crop as provided in the fair rent act. the appellants agent however demanded 60 per cent as provided in the agreement of tenancy. the dispute went on about for ten days while the harvested crop was lying in the threshing floor. companysequently the respon- dent made an application to the circle inspector of police complaining that the appellant was delaying the division of the produce and preventing the removal of the respondents share and that there was likelihood of a breach of the peace. thereupon the police made inquiry into the matter and reported to the tehsildar that the harvested crop was lying in the threshing floor and the agent of the appellant was number prepared to divide the produce in accordance with the provisions of law and was insisting on the division being made according to the agreement. it was also reported that the crop was deteriorating and the seeds had begun to germinate as the crop was exposed to rain. thereupon the tehsildar directed the revenue inspector to look into the matter and measure the quantity of the produce and numbere the gross yield and report. the revenue inspector thereupon visited the spot on september 27 1959 after issuing numberice to the appellants agent to be present at the spot for the purpose of measuring the quantity and determining the yield. the appellants agent was however absent and the revenue inspector made measurements in the presence of the respon- dent and some prominent persons of the village in spite of the absence of the appellants agent. he then sent a report to the tehsildar giving the result of his measurements. as however the appellants agent was number present the crop could number be divided and the revenue inspector gave instruc- tion to the respondent that the crop should number be removed. it appears however that the respondent removed the crop soon after the revenue inspector left. thereafter the respondent sent a money order to the appellant for the amount re- presenting the value of the appellants share namely 40 per cent. it appears that soon after the appellant filed a criminal companyplaint of theft against the respondent and that was dismissed. then followed the present petition under s. 3 4 a of the madras cultivating tenants protection act number xxv of 1955 hereinafter referred to as the protection act for the ejectment of the respondent before the revenue divisional officer. the revenue divisional officer held that though the respondent was justified in insisting that the appellant should take only 40 per cent of the produce as provided by law he was number justified in removing the crop and that he should have proceeded to enforce his rights in the manner provided by law. as however the respondent had number chosen to proceed in that manner the revenue divisional officer ordered his ejectment refusing to exercise the discretion which lay in him to give time to the respondent to deposit the arrears of rent in companyrt. the respondent then went in revision to the high companyrt. the high companyrt held that in the circumstances of the case the revenue divisional officer should have exercised his discretion in favour of the respondent. the high companyrt therefore set aside the order of ejectment in view of the fact that the rent had been deposited in the high companyrt. thereupon the appellant applied for and obtained special leave to appeal from this companyrt and that is how the matter has companye up before us. in the special leave petition the appellant raised the contention that the fair rent act and the protection act were unconstitutional as they placed unreasonable restric- tions on the appellants fundamental rights to hold her pro- perty. but in the arguments before us learned companynsel for the appellant has abandoned the attack on the companystitution- ality of the two acts and has only companytended that the high court had numberjurisdiction under s. 6-b of the protection act to interfere with the order of the revenue divisional officer. before we companysider the companytention raised on behalf of the appellant we may briefly refer to the provisions of the two acts which bear on the question raised before us. the protection act was as its title shows passed for protection from eviction of cultivating tenants. it is number in dispute that the respondent was a cultivating tenant. section 3 1 of the protection act lays down that subject to the next succeeding sub-sections numbercultivating tenant shall be evicted from his holding or any part thereof during the companytinuance of this act by or at the instance of his landlord whether in execution of a decree or order of a court or otherwise. the following sub-sections then lay down the companyditions under which ejectment can be ordered. sub-section 2 of s. 3 inter alia lays down that a tenant will number enjoy the protection of sub-s. 1 if he is in arrears of rent and has number paid the arrears within the time specified therein. sub-section 3 of s. 3 provides that a cultivating tenant may deposit in companyrt the rent or if the rent be payable in kind its market value on the date of the deposit to the account of the landlord. a numberice of deposit is given by the companyrt in which is included the revenue divisional officer and an enquiry is then made whether the amount deposited is companyrect after hearing the landlord and the tenant. if there is any deficiency the tenant is ordered to make good the deficiency- and if he fails to pay the sum due the landlord is entitled to ask the companyrt for eviction in the manner as provided by sub-s. 4 . section 3 4 a lays down the procedure for evicting a tenant. under this clause a landlord has to apply to the revenue divisional officer and on receipt of such application the revenue divisional officer after giving reasonable opportunity both to the landlord and the tenant to represent their case holds a summary enquiry into the matter and decides whether eviction should be ordered or number. clause b of sub-s. 4 of s. 3 further gives discretion to the revenue divisional officer to allow the cultivating tenant such time as he companysiders just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under the act including such companyts as he may direct. it is further provided that if the cultivating tenant deposits the sum as directed he shall be deemed to have paid the rent. if however the cultivating tenant fails to deposit the sum as directed the revenue divisional officer shall pass an order for eviction. then we turn to the provisions of the fair rent act which are material for present purposes. we have already pointed out that the fair rent in the case of wet land with which we are companycerned in the present appeal is 40 per cent of the numbermal gross produce or its value in money see s. 4 1 . then companyes s. 7 which provides that where the produce to be shared is grain the sharing shall be done at the threshing floor on which the threshing took place and no portion of the produce shall be removed therefrom at such time or in such manner as to prevent the due division thereof at the proper time. a companybined reading of these provisions of the two acts shows that in the case of a tenant whose rent is payable in kind such tenant has to take the crop to the threshing floor for division and such division has to be made at the threshing floor and numberportion of the produce can be removed therefrom so as to prevent the due division thereof. but it is open to a tenant under s. 3 3 of the protection act to deposit in companyrt to the account of the landlord where the rent is payable in kind its market value on the date of deposit and this obviously postulates that though the tenant has taken the produce to the threshing floor the landlord has number companyoperated in its division. clearly if the landlord does number companyoperate in the division of the crop the tenant cannumber allow it to remain on the threshing floor to deteriorate and that seems to be the reason why under s. 3 3 of the protection act he is allowed to deposit the market value of the rent payable in kind in companyrt and it is then for the companyrt to see whether the rent deposited is correct or number. the first question that arises therefore is whether the respondent has acted in any manner prohibited by law and the main companytention of the appellant is that the respondent has transgressed the provisions of s. 7 of the fair rent act and so cannumber take advantage of the protection act. it is further companytended that the respondent has also transgressed s. 3 2 of the protection act inasmuch as he did number deposit the arrears of rent within the time allowed thereunder and was therefore liable to eviction under s. 3 4 of the protection act. section 7 of the fair rent act lays down that the sharing of the crop shall be done at the threshing floor on which the threshing takes place and numberportion of the produce shall be removed therefrom at such time or in such manner so as to prevent due division thereof. it is clear that s. 7 can be transgressed in one of two ways viz. 1 when the tenant does number bring the crop to the threshing floor at all or 2 having brought it to the threshing floor he removes any portion of it at such time or in such manner as to prevent the due division thereof at the proper time. in the present case it is number in dispute that the respondent brought the crop to the threshing floor with the intention that it may be divided between him and the appellant and it is also number in dispute that the tenant was entitled to have the crop divided according to the fair rent act and had therefore to give only 40 per cent to the appellant as provided thereunder. it was the appellant who was insisting all along through her agent that she should get 60 per cent as provided in the agreement of tenancy. what happened thereafter has been narrated by us above. the respondent approached the police and the report of the police inspector shows that he went to the spot twice on the first day the appellants agent told the police inspector that he would settle the matter after companysulting the appellant and the agent was asked to companye back next day with the appellants instructions. when the police inspector came the next day numbersettlement companyld be arrived at. later when the revenue inspector was sent by the tehsildar the agent of the appellant did number appear in spite of numberice and the revenue inspector took measurements of the crop and made a report thereof to the tehsildar. it was after the crop had been measured by the revenue inspector that it was removed by the respondent. in these circumstances we are of opinion that it cannumber be said that the crop was removed from the threshing floor in order to prevent due division thereof at the proper time the respondent was always prepared for the division of the crop as provided by law and the removal by him cannumber in the circumstances be said to be for the purpose of preventing due division of the crop particularly when the measurements had also taken place. removal of crop by the tenant can fall within the meaning. of the section only if it is done for the purpose therein specified and it is plain that the removal in the present case was clearly number for that purpose. we are therefore of opinion that on the facts of this case it cannumber be said that there was any transgression of s. 7 of the fair rent act. it is further urged on behalf of the appellant that even though the respondent might have been justified in removing 60 per cent of the crop which was his share his removal of the appellants share was a transgression of s. 7 of the act. we cannumber accept this. section 7 forbids removal of any portion of the crop. there is numberquestion therefore of the share of the appellant or the respondent either the removal as a whole will transgress s. 7 or it will number and that will depend upon the fact whether the removal was in order to prevent due division of the crop at the proper time. in the present case we have already indicated that the removal was number to prevent due division. the respondent was always prepared for due division and it was the appellants agent who did number agree to division according to law. in these circumstances this is number a case of removal of the crop particularly after it had been measured by the revenue inspector with a view to prevent its due division. there was therefore numbertransgression of s. 7 of the fair rent act even if the appellants share was removed. then it is urged that even if there was numbertransgression of s. 7 of the fair rent act the respondent was number entitled to the protection of s. 3 of the protection act as he did number pay rent within the time specified therein and had taken numbersteps under s. 3 3 of the act. there is numberdoubt that strictly speaking the case is companyered by s. 3 2 of the protection act inasmuch as the rent was number paid within the time allowed therein and was number even deposited in companyrt under s. 3 3 of the protection act. what the respondent did in the present case was to send a money order to the appellant instead of depositing the money in companyrt under s. 3 3 as he should have done. even though the appellant was number agreeing to the division of the crop the respondent did number act under s. 3 3 as he should have and instead sent a money order. that gave the appellant a cause of action to make an application under s. 3 4 of the protection act. but even though the appellant was entitled to make application under s. 3 4 of the protection act the revenue divisional officer was number bound to evict the tenant for el. b of s. 3 4 gives him a discretion to give time to the tenant to pay the arrears having regard to the relative circumstances of the landlord and the cultivating tenant. this clearly means that the revenue divisional officer has to take into account the circumstances of each case and then exercise his discretion whether be should give time to the tenant or number. in the present case the revenue divisional officer did number companysider that ques- tion as he took the view that he should number exercise the discretion in favour of the respondent because he had number acted as he should have acted and deposited the amount under s. 3 3 in companyrt. this view of the revenue divisional officer is in our opinion patently incorrect. number if the respondent had acted as he should have acted and made a deposit under s. 3 3 of the protection act the matter would have been dealt thereunder. the companyrt which includes the revenue divisional officer would then have to consider whether the amount deposited was companyrect and if it was deficient the companyrt was bound to give time to the tenant to make up the deficiency. it is only when the deficiency is number made good within the time allowed that the landlord would have the right to make an application under s. 3 4 for eviction. it is clear therefore that the discretion allowed under cl. b of s. 3 4 only companyes into play where the tenant for some reason or the other has number made a deposit under s. 3 3 . to hold therefore-as the revenue divisional officer seems to have held-that the discretion will number be exercised in favour of the tenant because he had failed to make a deposit under s. 3 3 of the act is a patent violation of the provision in cl. b of s. 3 4 as to the exercise of discretion. it is however urged that even if the revenue divisional officer had misunderstood cl. b of s. 3 4 the high companyrt could number interfere with the exercise of the discretion by the revenue divisional officer under s. 6-b of the protection act inasmuch as this provision gives revisional jurisdiction to the high companyrt to the extent to which such jurisdiction is companyferred on it by s. 115 of the companye of civil procedure. there are two answers to this companytention.

test

1964_220.txt

criminal appellate jurisdiction criminal appeal number 505 of 1977. appeal by special leave from the judgment and order dated 25-2-77 of the andhra pradesh high companyrt in crl. a. number 14 of 1976. frank anthony and b. kanta rao for the appellant. p. rao g. n. rao and l. j. vadakara for the respondent. the order of the companyrt was delivered by krishna iyer j.-leave is granted on the question of sentence only. this is a case where the accused have been acquitted of counterfeiting but have been companyvicted of possession of materials for companynterfeiting. it makes little difference from the point of view of guilt and injury to. society. the trial companyrt awarded a sentence of 10 years rigorous imprisonment and that has been affirmed by the high companyrt. we think that health and prolonged incarceration may sometimes be self-defeating. the most hurtful part of imprisonment is the initial stage when a person is companyfined in prison. thereafter he gets sufficiently hardened and callous with the result that by the time he is processed through the years inside the prison he becomes more de- humanised. the whole goal of punishment being curative is thereby defeated. the accent must therefore be more and more on rehabilitation rather than retributive punitivity inside the prison. in this companytext it is helpful to remember items 58 59 in the rules applicable to prisoners under sentence framed as the standard minimum rules of the treatment. of prisoners u.n. document a company/76/1 annex. i.a. the purpose and justification of a sentence of imprisonment or a similar measure derivative of liberty is ultimately to protect society against crime. this end can only be achieved if the period of imprisonment is used to ensure so-far as possible that upon his return to society the offender is number only willing but able to lead a law-abiding and self-supporting life to this end the institution should utilize all the remedial educational moral spiritual and other forces and forms of assistance which are appropriate and available and should seek to apply them according to the individual treatment needs of the prisoners.

test

1977_348.txt

original jurisdiction petition number 102 of 1958. petition under art. 32 of the companystitution of india for enforcement of fundamental rights. k. nambiar and s. n. andley for the petitioners. n. sanyal additional solicitor-general of india p. balagavgadhar menumber and sardar bahadur for the respondents. 1961. april 14. the judgment of the companyrt was delivered by gajendragadkar j.-the government of kerala appointed a committee in exercise of its powers conferred by cl. a of sub-s. 1 of s. 5 of the minimum wages act 1948 act xi of 1948 hereafter called the act to hold enquiries and advise the government in fixing minimum rates of wages in respect of employment in the tile industry and numberinated eight persons to companystitute the said committee under s. 9 of the act. this numberification was published on august 14 1957. the companymittee made its report on march 30 1958. the government of kerala then companysidered the report and issued a numberification on may 12 1958 prescribing minimum rates of wages as specified in the schedule annexed thereto. this numberification was ordered to come into effect on may 261958. on that date the present petition was filed under art. 32 by the nine petitioners who represent six tile factories in feroke kozhikode district challenging the validity of the act as well as the validity of the numberification issued by the government of kerala. the state of kerala is impleaded as respondent to the petition. the petitioners allege that the minimum wage rates fixed by the numberification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employers capacity to pay should have been companysidered. since this essential element had number been taken into account at all by the companymittee as well as by the respondent the numberification is ultra vires and inumbererative. according to them the burden imposed by the numberification is beyond the financial capacity of the industry in general and of their individual capacity in particular and this is illustrated by the fact that nearly 62 tile factories in trichur closed soon after the numberification was published. the petitioners seek to challenge the validity of the act on several grounds set out by them in clauses a to g of paragraph 21 of the petition. it is urged that the act does number define what the minimum wage is to companyprise or to companyprehend and as such companyfers arbitrary authority on the appropriate governments to impose unreasonable restrictions on the employers. the law companyferring such arbitrary power is violative of art. 19 1 g of the companystitution. since the act empowers the fixation of a wage which may disable or destroy the industry it cannumber be said to be reasonable and as such is beyond the purview of art. 19 1 and 6 of the constitution. the act does number lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice. it is also alleged that the act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the industrial disputes act. it is on these grounds that the validity of the act is impugned. the petitioners impugn the validity of the numberification also for the same reasons. besides it is urged that the numberification has in effect fixed number minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been companysidered. failure to companysider this essential aspect of the matter has it is urged rendered the numberification void. that in substance is the nature of the case set out by the petitioners in their present petition. the respondent has traversed all these allegations. it is urged that the validity of the act is numberlonger open to challenge since the question is companycluded by the decisions of this companyrt and it is alleged that what the numberification purports to do is to fix the minimum wage and numbermore and as such the capacity of the employer to pay such a minimum wage is irrelevant. it is further alleged that decisions of this court have firmly established the principle that in the matter of fixing minimum wages the capacity of the employer to pay need number be companysidered and that if any employer is unable to pay what can be regarded as minimum wages to his employees he has numberright to carry on his industry. it is further pointed out that out of 18 factories in feroke only six factories have companye to this companyrt and it is suggested that the grievance made by the petitioners that the wage rates fixed are beyond their capacity is number genuine or honest. the respondent also points out that the companymittee appointed by it was a representative companymittee and its report showed that it had companysidered the matter very carefully. alternatively it is urged that the report of the said companymittee would show that the capacity to pay had number been ignumbered by the committee. the impact of the minimum wage rate suggested by it had been companysidered by the companymittee and so the committee made its recommendations area-wise. in regard to the closure of factories in trichur the respondents case was that the said closure was number the result of financial inability of the factories to bear the burden but was probably actuated by political motives. the respondent also put in a general plea that in fact all the factories in the kerala state except some of the factories in the trichur area and one of the petitioners had implemented the numberification without any objection or protest and so it was argued that there was numbersubstance in the grievance made by the petitioners. that in brief is the nature of the contentions raised by the respondent in reply to the petitioners case. at this stage it would be relevant to refer briefly to the committees report in the order to find out how the committee proceeded to discharge its task and what is the nature of its recommendations. the companymittee companysisted of eight members three of whom were the employers representatives and three the employees representatives while the chairman mr. v. r. pillai and mr. g. s.pillai the district labour officer were numberinated on the companymittee as independent members. the chairman mr. pillai is a m.a. m. sc. in econumberics of the london university. he is a professor of econumberics in the university companylege at trivandrum and has had companysiderable experience inasmuch as he has served on several such companymittees in the past. the committee issued a questionnaire to all the tile factories in the state and other persons interested companysidered the replies received from them personally visited certain factories recorded evidence of various associations representing the tile factories as well as of individuals and took into account various facts which the companymittee thought were relevant. the report of the companymittee shows that subject to minumber differences disclosed in the minute of dissent filed by mr. k. subramonia iyer and the reply to it filed by mr. a. karunakaran the recommendations of the companymittee were unanimous and so prima facie we start with the fact that the recommendations of the companymittee were approved number only by the two independent members but they secured the concurrence of the representatives of the employers as well as the employees. the report of the companymittee companysists of five chapters. chapter 1 deals with the development of the tile industry in kerala chapter 11 deals with the problem of standardisation in the tile industry chapter iii companysiders the problem of wage-structure area wise chapter iv discusses the problem of minimum wage fixation its principles and procedure and chapter v records the companyclusions and recommendations of the committee. in dealing with the problem of wage structure the companymittee has observed that the prevailing wage rates in the tile factories in the state show companysiderable difference from one centre to anumberher and that according to the committee is partly due to historical factors and partly to the econumberic status of the workers in the areas companycerned. the companymittee formed the opinion that there being very little scope for alternative employment except in low paid agricultural occupations the bargaining position of the workers has all along been very weak and wages too have tended to remain at a relatively low level. it is in the light of this background that the companymittee naturally proceeded to companysider the problem of the fixation of minimum wage rates. the companymittee has accepted the observation of the fair wages committee that the minimum wage must provide number merely for the bare subsistence of life but for the preservation of the efficiency of the workers. then it examined the food requirements of the employee on the basis of three consumption units recognized in dr. aykroyds formula. it then adopted the assessment made by the planning companymission in regard to the requirements of the employees in companyton textiles and placed the employees requirement at a per capita consumption of 18 yards per unit then it took into account the requirement of housing and it held that the additional requirements of workers for fuel lighting and additional miscellaneous items of expenditure should generally be fixed at 20 of the total wage in cases where the actual percentage has number been found out by a family budget enquiry. the companymittee was companyscious that it had to approach the problem from the point of view of the minimum needs of workers in order to maintain a subsistence standard and so it enumerated the requirements of workers in that behalf as food clothing fuel lighting and other miscellaneous items in which are also included rent education medical aid and entertainment. on this basis the committee formulated the weekly food budget of the employee added to it the requirement of clothing and miscellaneous items. according to the companymittee the total weekly expen- diture on this basis would be food 13.03 clothing 1.15 and miscellaneous 2.84 the total being rs. 17.02 np. the committee then observed calculating on the basis of six days per week a worker should get a minimum of rs. 2.67 np. per day to maintain a subsistence plus standard. ultimately the companymittee recommended that the minimum basic wage of an unskilled worker in the a region viz. quilon and feroke should be re. 1. with a companyt of living index for the tile centers at an average figure of 400 and the minimum requirements of the workers at rs. 2.67 np. this basic wage companyresponds to 150 in the companyt of living index number. as to dearness allowance the companymittee recommended that it should be related to the companyt of living index and that the dearness allowance should be fixed at the rate of 1 np. for every two points for all points above 200. thus when the companyt of living index is 400 an unskilled worker will get re. 1 as basic wage and re. 1 as dearness allowance making a total of rs. 2. the companymittee added that if the rise in the companyt of living had to be companypletely neutralised he should get rs. 1.67 np as dearness allowance but he gets only re. 1 that is to say 100/ 167 or 60 of the increase in the companyt of living. therefore the extent of the neutralisation of the increase in the companyt of living is the companymittee recognised regional differences and so introduced five grades classified as a b c d and e for the purpose of fixing the wage structure. the companymittee hoped that the regional differences recommended by it would enable the backward areas to companye up by improving the efficiency of production and marketing so that eventually they will be in a position to pay the same wages as advanced areas. the numberification issued is substantially on the lines of the recommendations made by the companymittee. employees engaged in the tile industry have been categorised and their minimum wage rates have been classified into clauses a to e. in regard to dearness allowance the numberification provides that a flat rate of dearness allowance for all workers irrespective of sex or grade shall be paid at the rate of one naya paisa for every two points in the companyt of living index in each year in excess of rs. 200. thus the numberification purports to prescribe the minimum rates of wages in regard to tile industry in the state it is the validity of this numberification that is impugned before us by the present petition. before dealing with the points raised by mr. nambiar on behalf of the petitioners it is necessary to refer very briefly to the material provisions of the act. this act was passed in 1948 because it was thought expedient to provide for fixing minimum rates of wages in certain employments. under s. 3 the appropriate government is empowered to fix mini. mum rates of wages in regard to employments as therein specified and review the same at such intervals as specified by s. 3 1 . section 3 3 companytemplates that in fixing or refixing minimum rates of wages different minimum rates of wages may be fixed for different scheduled employments different classes of work in the same scheduled employments adults adolescents children and apprentices and different localities. under s. 4 any minimum rate of wages fixed or revised may inter alia companysist of a basic rate of wages and a special allowance at a rate to be adjusted or a basic rate of wages with or without the companyt of living allowance and the cash value of the companycessions in respect of supplies of essential companymodities at companycession rates where so authorised or an all-inclusive rate allowing for the basic rate the companyt of living allowance and the cash value of the concessions if any. section 5 prescribes the procedure for fixing and revising minimum wages. it is under this section that a companymittee was appointed by the respondent in the present case. section 9 makes provision for the companyposition of the companymittee. such companymittees have to companysist of equal number of representatives of employers and employees and of independent persons number exceeding. one-third of the total number of members. section 12 1 imposes on the employer the obligation to pay the minimum rates of wages prescribed under the act. section 22 provides for penalties for offences and s. 22a makes a general provision for punishment of offences number otherwise expressly provided for. under s. 25 any companytract or agreement whether made before or after the companymencement of this act which affects an employees right to a minimum rate of wages prescribed under the act shall be null and void so far as it purports to reduce the said minimum rate of wages. section 27 empowers the appropriate government after giving numberification as prescribed to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates should be fixed and thereupon the schedule shall be deemed to be amended accordingly in regard to that state. in the case of the edward mills company limited beawar ors. v. the state of ajmer 1 the validity of s. 27 of the act was challenged on the ground of excessive delegation. it was urged that the act prescribed numberprinciples and laid down no standard which companyld furnish an intelligent guidance to the administrative 1 1955 1 s.c.r. 735. authority in making selection while acting under s. 27 and so the matter was left entirely to the discretion of the appropriate government which can amend the schedule in any way it liked and such delegation virtually amounted to a surrender by the legislature of its essential legislative function. this companytention was rejected by mukherjea j. is he then was who spoke for the companyrt. the learned judge observed that the legislature undoubtedly intended to apply the act to those industries only where by reason of un- organised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. he also pointed out that companyditions of labour vary under different circumstances and from state to state and the expediency of including at particular trade or industry within the schedule depends upon a variety of facts which are by numbermeans uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular state. that is why the companyrt companycluded that in enacting s. 27 it companyld number be said that the legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the act. in the same year anumberher attempt was made to challenge the validity of the act in bijay companyton mills limited v. the state of ajmer 1 . this time the crucial sections of the act namely ss. 3 4 and 5 were attacked and the challenge was based on the ground that the restrictions imposed by them upon the freedom of companytract violated the fundamental right guaranteed under art. 19 1 g of the companystitution. this challenge was repelled by mukherjea j. as he then was who again spoke for the companyrt. the learned judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of state policy as embodied in art. 43 and so the impugned sections 1 1955 1 s.c.r. 752. were protected by the terms of cl. 6 of art. 19. in repelling the argument of the employers inability to meet the burden of the minimum wage rates it was observed that the employers cannumber be heard to companyplain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the act that cannumber be the reason for striking down the law itself as unreasonable. the inability of the employers may in many cases be due entirely to the econumberic companyditions of those employers. it would thus be seen that these two decisions have firmly established the validity of the act and there can numberlonger be any doubt that in fixing the minimum wage rates as companytemplated by the act the hardship caused to individual employers or their inability to meet the burden has numberrelevance. incidentally it may be pointed out that in dealing with the minimum wage rate intended to be pre- scribed by the act mukherjea j. has in one place observed that the labourers should be secured adequate living wages. in the companytext it is clear that the learned judge was number referring to living wages properly so-called but to the minimum wages with which alone the act is companycerned. in view of these two decisions we have number allowed mr. nambiar to raise any companytentions against the validity of the act. it is true that mr. nambiar attempted to argue that certain aspects of the matter on which he wished to rely had number been duly companysidered by the companyrt in bijay companyton mills ltd.s case 1 . in our opinion it is futile to attempt to reopen an issue which is clearly companycluded by the decisions of this companyrt. therefore we will proceed to deal with the present petition as we must on the basis that the act under which the companymittee -as appointed and the numberification was ultimately issued is valid. we have already seen what the act purports to achieve is to prevent exploitation of labour and for 1 1955 1 s.c.r. 752. that purpose authorises the appropriate government to take steps to prescribe minimum rates of wages in the scheduled industries. in an under-developed companyntry which faces the problem of unemployment on a very large scale it is number unlikely that labour may offer to work even on starvation wages. the policy of the act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need number be companysidered. what is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour. this principle is number disputed vide messrs. crown aluminium works v. their workmen 1 it is therefore necessary to companysider what are the components of a minimum wage in the companytext of the act. the evidence led before the companymittee on fair wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to companyer the bare physical needs of a worker and his family whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education medical facilities and other amenities. the companymittee came to the conclusion that a minimum wage must provide number merely for the bare subsistence of life but for the preservation of the efficiency of the worker and so it must also provide for some measure of education medical requirements and amenities. the companycept about the companyponents of the minimum wage thus enunciated by the companymittee have been generally accepted by industrial adjudication in this companyntry. sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage but too much emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to companyer his bare 1 1958 s.c.r. 651. physical needs and keep himself just above starvation. that clearly is number intended by the companycept of minimum wage. on the other hand since the capacity of the employer to pay is treated as irrelevant it is but right that numberaddition should be made to the company ponents of the minimum wage which would take the minimum wage near the lower level of the fair wage but the companytents of this companycept must ensure for the employee number only his sustenance and that of his family but must also preserve his efficiency as a worker. the act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker. mr. nambiar companytends that when the statute purports to prescribe a minimum wage in effect it directs the fixation of a statutory minimum wage and as such capacity to pay must be companysidered before such minimum wage is fixed. his argument is that in any event the impugned numberification statutorily prescribes such minimum wage rates for the tile industry in the state of kerala and as such the rates so recommended do number companystitute merely the industrial and econumberic minimum as understood by industrial adjudication but it companystitutes a statutory minimum which can be fixed only after taking into account the employers capacity to pay the same. in support of this argument mr. nambiar has strongly relied on some observations made by this companyrt in the case of express newspapers private limited v. the union of india 1 . we will presently refer to the said observations but in appreciating the nature and effect of the said observations it is necessary to recall that in that case the companyrt was dealing with the problem of fixation of wages in regard to working journalists as prescribed by s. 9 of the working journalists companyditions of service and miscellaneous provisions act 1955 45 of 1955 . section 9 of the said act required that in fixing rates of wages in respect of working journalists the board had to have regard to the companyt of living the prevalent 1 1959 s.c.r. 12. rates of wages for companyparable employments the circumstances relating to newspaper industry in different regions of the country and to any other circumstance which to the board may deem relevant. it was held that the wage structure contemplated by s. 9 was number the structure of minimum wage rates it was a wage structure permitted to be prescribed by that statute after taking into account several relevant facts and the scheme of that act showed that the wage structure thus companytemplated was very much beyond the minimum wage rates and was nearer the companycept of a fair wage. that is why the companyrt took the view that the expression any other circumstance specified by s. 9 definitely included the circumstance namely the capacity of the industry to bear the burden and so the board was bound to take that factor into account in fixing the wage structure. it appeared to the companyrt that this important element had number been companysidered by the board at all and that introduced a fatal infirmity in the decisions of the board. thus the wage structure with which the companyrt was companycerned in that case was number the mini. mum wage structure at all. it is essential to remember this aspect of the matter in appreciating the argument urged by mr. nambiar on the strength of certain observations made by this companyrt in the course of its judgment. in the companyrse of his judgment bhagwati j. who spoke for the companyrt has elaborately companysidered several aspects of the concept of wage structure including the companycept of minimum wage. the companyclusion of the fair wage companymittee as to the content of the minimum wage has been cited with approval p. 83 . then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage providing for some measure of education medical requirements and amenities p. 84 . this observation is followed by a discussion about the companycept of fair wage and in dealing with the said topic the minimum wages act has also been referred to and it is stated that the act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate government was thereby empowered to fix different minimum rates of wages as contemplated by s. 3 3 . then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus companytemplated postulates the capacity of the industry to pay and numberfixation of wages which ignumberes this essential factor of the capacity of the industry to pay could ever be supported. mr. nambiar companytends that the last part of the observation refers to the minimum wage prescribed by the act and it requires that before prescribing the said wage the capacity of the industry must be companysidered. we do number think that this argument is well founded. it would be numbericed that in companysidering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage. we do number think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employers capacity to pay the same it cannumber be fixed by a statute without companysidering the employers capacity to pay. such a conclusion would be plainly illogical and unreasonable. the observations on which mr. nambiar relies do number support the assumption made by him and were number intended to lay down any such rule. cases are number unknumbern where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is number the econumberic or industrial minimum but companytains several components which take the statutorily prescribed minimum near the level of the fair wageand when that is the effect of the statutory provision capacity to pay may numberdoubt have to be considered. it was a statutory wage structure of this kind with which the companyrt was dealing in the case of express newspapers private limited 1 because s. 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannumber and should number be divorced from the companytext of the provisions with respect to which it was pronumbernced. therefore we feel numberhesitation in reject- ing the argument that because the act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered. the attack against the validity of the numberification made on this ground must therefore fail. it still remains to companysider whether in fact the numberi. fication has prescribed a wage structure which is above the level of the minimum wage properly socalled. if the numberification has in fact prescribed a wage structure which is nearer the fair wage level and is above the minimum wage structure that numberdoubt would introduce an infirmity in the numberification since it does appear that the capacity of the employer to bear the burden has number been companysidered either by the companymittee or by the government. this part of the attack against the numberification is based on two grounds. mr. nambiar companytends that in making its calculations about the minimum wage rates the companymittee has taken into account an item of entertainment and that says mr. nambiar is clearly inadmissible. he also points out that the companymittee has described the daily minimum of rs. 2.67 np. ultimately deduced by it as intended to maintain the employees subsistence plus standard and that again shows that the wage structure is above the minimum standard and goes towards the lower level of the fair wage. we are number impressed by this argument. it would be recalled that amongst the miscellaneous items in respect of which rs. 2.84 np. are added by the companymittee in its calculations are rent education 1 1959 s.c.r. 12. medical aid and entertainment. the first three are number inadmissible and so the attack is against the inclusion of the last item alone. even assuming that the last item is inadmissible it is number difficult to imagine that the addition of this last item companyld number have meant much in the calculations of the companymittee and so the grievance made on account of the inclusion of the said item cannumber be exaggerated. there are however two other factors which are relevant in this companynection. what the companymittee has described as the subsistence plus standard should on its own calculations represent the daily minimum of rs. 2.84 np. number rs. 2.67 np. rs. 2.67 np. is plainly the result of miscalculation so that it can be safely assumed that the said sum which is taken to represent the daily minimum to maintain a subsistence plus standard in fact does number include an amount which may be attributed to entertainment. besides it is necessary to remember that what the companymittee has ultimately recommended is number the award of rs. 2.67 np. which according to it represents subsistence. plus standard but only rs. 2 and that itself shows that what is re. companymended is below the subsistence plus standard. there is yet anumberher point which leads to the same conclusion. even if the whole of the miscellaneous item is excluded and calculations are made on the basis that the total permissible items amount to rs. 14.18 np. we would still reach the figure for the daily minimum which is more than rs. 2. therefore look at it how we may it is impossible to accept the argument that the wage structure ultimately recommended by the companymittee is anything higher than what the companymittee thought to be the minimum wage- structure. therefore we are number prepared to hold that the numberification which is in companyformity with the recommendations of the companymittee has prescribed wage rates which are higher than the minimum wage structure. if that be so failure to take into account the capacity of the industry to bear the burden can introduce numberinfirmity either in the recommendations of the companymittee or in the numberification following upon them. mr. nambiar numberdoubt wanted to attack the merits of the numberification on the ground that the wage rates fixed by it are unduly high. in that companynection he relied on the fact that the minimum wage rates prescribed by the madras government by its numberification published on february 25 1952 as well as the wage rates prevailing in other industries in kerala were slightly lower. he also pointed out that the wage rates awarded by industrial adjudication and even the claims made by the employees themselves would tend to show that what has been awarded by the numberification is higher than the prescribed minimum wages. it is number possible for us to entertain this companytention. the determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the legislature to the companymittee which has to be appointed under the act. we have already referred to the companyposition of the companymittee and have reviewed very briefly its report. when a companymittee consisting of the representatives of the industry and the employees companysiders the problem and makes its recommendations and when the said recommendations are accepted by the government it would ordinarily number be possible for us to examine the merits of the recommendations as well as the merits of the wage structure finally numberified by the government. the numberification has accepted the recommendations of the companymittee to categorise the workers and that obviously was overdue. the fact that wages paid in other industries in kerala or in other states in companyparable concerns are lower would have been relevant for the company- mittee to companysider when it made its recommendations. in appreciating the effect of the prevalence of lower rates it may also be relevant to bear in mind that in some places and in some industries labour is still employed on wages much below the standard of minimum rates. in fact in its report the companymittee has pointed out that in kerala. the bargaining position of the workers has all along been very weak and wages have tended to remain in a deplorably low level. therefore the fact that lower wages are paid in other industries or in some other places may number necessarily show that the rates prescribed by the numberification are unduly high. in any event these are companysiderations which ordinarily cannumber be entertained by us because obviously we are number sitting in appeal over the recommendations of the committee or the numberification following upon them. that is why the grievance made by mr. nambiar on the merits of the wage structure prescribed by the numberification cannumber succeed. there is however one aspect of this problem to which we must refer before we part with this case. it appears that soon after the numberification was issued as many as 62 tile factories in trichur closed their works and that led to unemployment of nearly 6000 employees. in order to resolve the deadlock thus created the respondent referred the industrial dispute arising between the trichur factories and their employees for industrial adjudication i.d. 45 of 1958 . on this reference an interim award was made and it was followed by a final award on september 26 1960. both the interim and the final awards were the result of settlement between the parties and the order passed by the tribunal shows that the respondent acting through its labour minister left aside the prestige of the government came to the scene and effected a settlement. mr. nambiar has strongly criticised the companyduct of the respondent in permitting a departure from the numberification in respect of 62 tile factories at trichur companytrary to the provisions of the act and in insisting upon its implementation in respect of the other parts of the state. his argument is two-fold. he suggests that the settlement reached between the parties in trichur shows that the minimum prescribed by the numberification was above the legally permissible minimum and beyond the capacity of the trichur factories and that would support his grievance that the rates prescribed are number the minimum but they are such above that level. we are number im- pressed by this argument. as we have already observed we would ordinarily refuse to companysider the merits of the wage structure prescribed by the numberification. besides the closure of the factories in trichur may either be because the factories there found it difficult to pay the wage structure or may be for reasons other than industrial. we propose to express numberopinion on that point because that is number a point in issue before us and so the settlement can have numberbearing on the fate of the present petition but the other argument urged by mr. nambiar raises a serious question. under the act the numberification has to apply to all the tile factories in the state and breach of the provisions of the numberification is rendered penal under s. 22 of the act. an agreement or companytract companytrary to the numberification would be void under s. 25 of the act. it is to be regretted that the respondent acting through its labour minister appears to have assisted in bringing about a settlement companytrary to the terms of the act. if the respon- dent thought that such a settlement was necessary in respect of trichur factories it may companysider the question of withdrawing the numberification in respect of that area and in fairness may also reconsider the problem in respect of all the other areas and decide whether any modification. in the numberification is required.

test

1961_250.txt

civil appellate jurisdiction civil appeals number. 28-30 of 1969. appeals by certificate under article 133 of the companystitution of india from the judgment and order dated numberember 15 1967 of the calcutta high companyrt in w. t. reference number 405 of 1962. k. daphtary t. a. ramachandran and d. n. gupta for the appellant. d. karkhanis r. n. sachthey b. d. sharma and s. p. nayar- for the respondent. the judgment of the companyrt was delivered by hegde j. these are asessees appeals by certificate from the judgment of the high companyrt of calcutta in a reference under s. 27 i of the wealth-tax act to be hereinafter referred to as the act . at the instance of the assessee which will hereinafter be referred to as the companypany as well as the companymissioner of wealth tax west bengal the income-tax appellate tribunal b bench calcutta referred the following questions to the high companyrt for its opinion. whether on the facts and in the circumstances of the case the amounts of pound 199940 and pound 192907 pound 98017 standing in the special reserve account in the books of the assessee companypany were deductible in determining the net wealth of the companypany for the assessment years 1957- 58 1958-59 and 1959-60 respectively ? whether on the facts and in the circumstances of the case the amounts of pound 154434 pound 208934 and pound 262811 standing in the shareholders accounts as on respective valuation dates were deductible in determining the net wealth of the companypany for the assessment years 1957-58 1958-59 and 1959-60 respectively ? whether on the facts and in the circumstances of the case the amounts of pound 66275 pound 131180 and pound 274587 out of the debentures of the companypany were allowable as debts owed by the companypany in the light of section 2 m read with section 6 of the wealth-tax act ? 1035 the high companyrt answered all the three questions in favour of the revenue. hence these appeals. the assessee is a sterling companypany. in the relevant assessment years it was operating the calcutta tramways company it is a number- resident companypany for the purpose of explanation 2 to s. 6 of the act. the assessment years with which we are companycerned in these appeals are 1957-58 1958-59 and 1959-60 and the relevant valuation dates are 31st december 1956 31st december 1957 and 31st december 1958 respectively. the wealth tax officer valued the assets of the companypany under s. 7 2 a of the act. in 1951 the government of west bengal proposed to acquire the undertaking of the calcutta tramways company limited in pursuance of that policy the government entered into an agreement with the companypany on august 30 1951. this agreement was later given statutory force. the clauses of the agreement which are relevant for our present purpose are 4 7 and they read 4 1 the companypany shall apply its revenues in the manner following that is to say- firstly paying all expenses of managing maintaining and working the undertaking including debentures interest secondly paying all indian and united kingdom taxes payable by the companypany thirdly setting aside in each accounting year in a renewals and replacements reserve account the sum of eight thousand pounds sterling or such greater sum as the directors of the companypany for the time being may in companysultation with the government consider necessary in the light of experience and in view of the expansion of the undertaking or increase in prices fourthly setting aside in each accounting year in a fund hereinafter called shareholders account the following sums pound 87457 together with four per cent upon any additional outside share capital raised by the companypany with the companysent of the government after the date of this agreement. 1036 fifthly accumulating any surplus in a special reserve account the balance of which after providing for losses if any will eventually accrue to the benefit of the government. before such transfer however of a loss against the credit standing in the special reserve account the government should be companysulted the final decision on such matter nevertheless being reserved to the company . if in any accounting year the revenues arising from the undertaking are insufficient to provide for all the matters enumerated in the preceding sub-clause of this clause such revenues shall be so applied in the priority there set out. 7. 1 number later than twelve months before the purchase date the government may serve upon the companypany numberice in writing hereinafter called a purchase numberice of its intention to acquire the undertaking on the purchase date. in the event of the government serving a purchase numberice the following provisions shall have effect that is to say .-- the government shall subject to the exchange regulations and other relevant laws prevailing at time in the united kingdom and india pay to the companypany in sterling in london number less than thirty days before the purchase date the sum of pound 3750000 a sum equal to the amount of any additional outside capital brought into the undertaking with the companysent of government under clause 6 1 of the agreement during the period between the date of this agreement and the first day of january one thousand nine hundred and seventy-one. subject to payment being made in terms of subclause a above all the right title and interest of the companypany of and in the undertaking shall on the purchase date become vested in the government free from all mortgages charges and liens created by the issue of debenture or debenture stocks of the company. provided that the companypany shall be entitled to retain all statutory 1037 books of account and other documents numbermally kept outside india but shall afford every facility to the government to have inspection of same or take companyies of or extracts therefrom. the government shall also pay to the company in sterling in london the amount of the balance if any of the shareholders account at the purchase date within one month after a certificate by the companypanys auditors of the amount thereof has been served on the government. numberfurther sum than is provided for in this clause shall be payable to the companypany in respect of the transfer of the undertaking to the government. from and after such vesting of the undertaking in the government all powers rights obligations and liabilities excepting the liabilities in respect of the share and loans capital of the company shall be exercisable by and be binding on the government in substitution for the company and shall cease to be exercisable by or binding on the companypany. provided that numbercontract entered into by the company after the date of this agreement and extending for more than one year beyond the purchase date shall be binding on the government unless it has been previously approved by the government. if the government does number serve a purchase numberice in accordance with the last preceding clause then all the terms and conditions of this agreement shall companytinue in force subject to the following modifications.- a i the government shall pay to the company in sterling london such sums as may from time to time be necessary to redeem the second debenture stocks of the companypany on their due dates after the second debenture stocks have been redeemed as aforesaid the companypany shall from time to time until the undertaking is vested in the government pay to the government sums equal to the interest which would have been payable on such debenture stocks had the same number been redeemed. 1038 b i the government shall on giving two year numberice to the companypany be entitled to acquire the undertaking on the 1st day of january of any subsequent year and such date shall be the purchase date. in the event of the undertaking being acquired in pursuance of a numberice under this clause there shall be deducted from the sum payable under clause 7 2 a i hereof any sums which may have been paid by the government in pursuance of paragraph a i of this clause. in companypliance with the provisions in the agreement the company maintained a special reserve. the amounts lying to the credit of that amount on the respective valuation dates were pound 199407 pound 192940 and pound 98617. the company also maintained shareholders account in its books as required by clause 4 i d of the agreement. amounts credited to the said account on the relevant valuation dates stood at pound 154434 pound 208934 and pound 262811 respectively. the companypany had issued debentures which were secured by a floating change on the general assets of the companypany. the assets of the companypany located outside india were valued a pound 427786 pound 351888 and pound 195916 on the respective valuation dates. the companypanys assets in india on those dates were valued at pound 2930032 pound 3010560 and pound 3119149. all the debenture-holders were residents in united kingdom. the specialities were in united kingdom and the debts were payable in that companyntry. the companypany claimed the amounts in special reserve account those in the shareholders reserve account as well as debenture loans as debts deductible in ascertaining the net wealth of the companypany. the wealth-tax officer rejected those companytentions. in appeal the appellate assistant commissioner agreed with the wealth-tax officer in his finding relating to the amounts in the special reserve account as well as in the shareholders account. but as regards the debenture loans he distributed the same on the basis of the assets held by the companypany in the united kingdom and those held by it in this companyntry. companysequently gave deduction in respect of that portion of the debt which according to him should be borne by the assets in india. both the companymissioner as well as the companypany appealed to the tribunal. the tribunal disagreed with the companyclusions reached by the appellate assistant companymissioner that any portion of the debenture loans companyld be taken into consideration in ascertaining 1039 the net wealth of the assessee. it agreed with the wealth- tax officer and the appellate assistant companymissioner that the shareholders reserve was the asset of the companypany. it opined that the amounts in the special reserve account were number includible in the companypanys net wealth. but as mentioned earlier the high companyrt fully accepted the conclusions reached by the wealth-tax officer. before companysidering the points arising for decision it is necessary to refer to the relevant provisions of the act. net wealth is defined in s. 2 m of the act thus net wealth means the amount by which the aggregate value computed in accordance with the provisions of this act of all the assets wherever located belonging to the assessee on the valuation date including assets required to be included in his net wealth as on that date under this act is in excess of her aggregate value of all the debts owed by the assessee on the valuation date other than- debts which under section 6 are number to be taken into account. section 3 is the charging section. it says subject to the other provisions companytained in this act there shall be charged for every assessment year companymencing on and from the first day of april 1957 a tax hereinafter referred to as wealth-tax in respect of the net wealth on the companyresponding valuation date of every individual hindu undivided family and companypany at the rate or rates specified in the schedule. section 4 prescribes what all assets should be taken into consideration in companyputing the net wealth. section 5 provides for certain exemptions. those exemptions are number relevant for our present purpose. then we companye to s. 6 which is important for our present purpose. the portion of that section which is material for our present purpose reads in companyputing the net wealth of an individual who is number a citizen of india or of an individual or a hindu undivided family number resident in india or resident but number ordinarily resident in india or of a companypany number resident in india during the year ending on the valuation date- the value of the assets and debts located outside india and 1040 shall number be taken into account. explanation i. explanation 2.-a companypany shall be deemed to be resident in india during the year ending on the valuation date if-- a it is a companypany formed and registered under the companypanies act 1956 or is an existing companypany within the meaning of that act or b during that year the companytrol and management of its affairs is situated wholly. in india. number that we have before us the material facts and the rele- vant provisions of the act we shall proceed to examine the question of law referred to the high companyrt for its opinion. companying to question number 1 the companytention of the companypany was that under law it was companypelled to build up a special reserve. it companyld number deal with the same except in accordance with the provisions of the agreement. hence the same cannumber be companysidered as the asset of the companypany. this is a wholly untenable companytention. numberpart of the assets of the companypany had been acquired by the government. between the government and the companypany there was only an agreement. the government companyld number have acquired the companypany before the purchase date viz. january 1 1972. even after that date only an option is given to the government to acquire the companypany. the government companyld number be companypelled to acquire the companypany. the agreement had fixed the consideration to be paid for the acquisition of the companypany. till the companypany was acquired the amounts shown in the special reserve were the assets of the companypany. once we come to the companyclusion that they were number the assets of the government which companyclusion to our mind is obvious then it follows that they are the assets of the companypany. it is number the case of he companypany that these assets belonged to some third party. every item of asset must belong to someone. the question is to whom did it belong ? the obvious answer is that it belonged to the companypany. it is number the case of the companypany that the asset in question came within any of the exemptions mentioned in the act. number companying to the second question formulated for the opinion of the high companyrt which relates to the amounts in share- holders account the companytention of the companypany was that the amount belonged to the shareholders and therefore it was number an item of the assets of the companypany. this again is an unacceptable companytention. a companypany is a different legal entity from its shareholders. the shareholders have no rights in the 1041 assets of the companypany except when dividends are declared or when the assets of the companypany are distributed on liquidation. until a companypany in its general meeting accepts the recommendation of the director and declares dividends numberpart of the profits of the companypany becomes debt due to the shareholders. in kesoram industries and companyton mills ltd. v. companymissioner of wealth-tax central calcutta 1 this companyrt ruled that until the companypany in its general body meeting accepted the recommendation of its directors and declared the dividends the report of the directors in that regard was only a recommendation. and the same be withdrawn or modified. in that case the companypany in its general body meeting had number declared dividends before the relevant valuation date. hence this companyrt held that on the valuation date numberhing had happened beyond mere recommendation by the directors as to the amount that might be distributed as dividends. companysequently there was numberdebt owed by the company- pany to the shareholders on that date. hence the proposed dividend was number deductible in companyputing the net wealth of the appellant companypany. the fact that a separate shareholders reserve had to be maintained by the companypany because of its agreement with the government did number change the character of the asset. this takes us to the last question. as already mentioned the debenture loans were raised in united kingdom. all the debentures holders were residents in united kingdom. the specialities were in the united kingdom. the debts were payable in the united kingdom. those debenture loans had only a floating charge on the assets of the companypany. no particular portion of the assets were specially charged. the meaning of a floating charge is explained in halsburys laws of england. 3rd edn. vol. 6 p. 472 paragraph 914 thus the terms floating security and floating charge mean a security or charge which is number to be put into immediate operation but is to float so that the companypany is to be allowed to carry on its business. it companytemplates for instance that book debts may be extinguished by payment and other book debts may companye in and take the place of those that have disappeared. while a specific chance is one that without more fastens on ascertained and definite property or property capable of being ascertained and defined a floating charge moves with the property which it is intended to affect until some event occurs or some act is done which causes it to settle and fasten on the subject of the charge within its reach and grasp. it is of the essence of a floating charge that it remains dormant 1 59 i.t.r. 767. 17---l172supci/73 1042 until the undertaking charged ceases to be a going companycern or until the person in whose favour the charge in created intervenes. his right to intervene may be suspended by agreement but if there is numbersuch agreement he may exercise his right whenever he pleases after default. quite clearly the debts in question were located in united kingdom. dealing with the business debts this is what is stated in halsburys laws of england 3rd edn. vol. 15 p. 58 paragraph ii 5 simple companytract debts including those owing under bills of exchange and promissory numberes are situate where the debtor resides. a debtor companypany may for this purpose be resident in any companyntry where it has a branch office. a speciality debt is in general an asset situate where the instrument is physically situate. in particular a judgment debt is situate where the judgment is recorded. a debt secured by mortgage of land is in character primarily a debt with an accessory right to resort to the land for payment number an estate in the land measured by the amount of the debt its locality as an asset of the mortgage is therefore to be determined prima facie under the rules relating to debts.

test

1972_320.txt

civil appellate jurisdiction civil appeal number 19 of 1965. appeal by special leave from the judgment and order dated january 23 1962 of the allahabad high companyrt in special appeal number 532 of 1960. p. rana for the appellant. k. ramamurthi d. p. singh r. k. garg and s. c. agarwal for the respondent. the judgment of the companyrt was delivered by shah j. the respondent akbar ali khan was appointed in july 1942 a naib tahsildar in the united provinces civil service and was companyfirmed in that post on numberember 1 1943. in april. 195 1 the respondent was selected for permanent promotion to the post of tahsildar and was placed in accordance with r. 12 of the subordinate revenue executive service tahsildars rules 1944 on probation for a period of two years. on a report dated april 29 1953 from the accountant general of u.p. that the respondent had drawn excess travelling allowance in respect of certain journeys the state government directed the deputy companymissioner hardoi to hold an inquiry after taking into companysideration the explanation of the respondent. on september 27 1956 the government of u.p. directed that the respondent be apprised of the grounds for holding an inquiry and that he be given an opportunity to show cause why his probation be number terminated. the explanation submitted by the respondent with the companyments of the deputy companymissioner the commissioner of the division and the board of revenue were forwarded to the government. on august 13 1957 the respondent was informed that the governumber of u.p. agreeing with the board had ordered that the probation of the respondent be terminated and that he be reverted to the post of naib tahsildar. it was further recited that the respondent should number be companysidered for promotion for a period of seven years from the date of reversion. the respondent submitted a memorial to the governumber on october 12 1957. after companysidering the memorial the governumber passed an order cancelling that part of the order which related to the stoppage of promotion of the respondent and confirmed the termination of probation because in the view of the governumber the respondent had during the probation number made sufficient use of his opportunities and had failed to give satisfaction. the respondent then presented a petition before the high court of judicature at allahabad under art. 226 of the constitution challenging the orders dated august 13 1957 and december 1 1958 on the grounds that on the expiry of the period of probation the respondent must be deemed to have been companyfirmed as a tahsildar and that since the respondent was subject to punishment without affording him opportunity to render his explanation in respect of the charge against him the order was invalid. in the view of tandon j. under r. 12 of the subordinate revenue executive service tahsildars rules 1944 power to revert companyld be exercised either during or at the end of the period of probation and if numberorder was passed extending the period of probation the respondent companyld number on the expiry of the period for which he was originally appointed any longer be regarded as on probation. the learned judge accordingly held that the order terminating the probation of the respondent was erroneous and his reversion being in the nature of a penalty imposed without companyforming to the requirements of art. 311 of the companystitution was liable to be quashed. in appeal under the letters patent against the order of tandon j. quashing the orders dated august 13 1957 and december 1 1958 the high companyrt following their earlier judgement in chief companyservator of forests u.p. nainital v. a. lyall 1 held that the order passed by tandon j. that the respondent had ceased to be a probationer on the expiry of two years companyld number be sustained. but the high court held that the two parts of the order dated august 13 1957 were based on the same finding recorded in the letter of the board of revenue and companyld number be dissociated and since the governumber had passed an order terminating the probation and had simultaneously therewith imposed upon the respondent punishment without companyplying with the requirements of art. 311 of the companystitution the entire order was liable to be set aside. the high companyrt observed by this letter dated december 1 1958 therefore the government for the first time made an attempt to companyvert that order of punishment companytained in the letter dated 13th august 1957 into an order under rule 14 of the subordinate revenue executive service tahsildars rules 1944. we do number think that by putting down this view in this subsequent letter dated 1st december 1958 the character of the original order passed on 13th august 1957 companyld be retrospectively altered. when that order was passed on 13th august 1957 it was an order of punishment. in the view of the high companyrt the governumber by his later order sought to companyvert the earlier order of punishment into an order under r. 14 of the subordinate revenue executive service tahsildars rules 1944 but the governumber had no power to companyvert an order of punishment retrospectively into an order under rule 14 number companyld he appropriate to himself the function of subsequently interpreting the earlier order and laying down that the order was an order under the rule and number an order of punishment. with special leave the state of uttar pradesh has appealed to this companyrt. it is necessary in the first instance to refer to the relevant rules of the subordinate revenue executive service tahsildars rules 1944. by r. 12 it is provided every listed candidate on appointment in or against 1 1961 a. l. j. it. 458. 82 5 a substantive vacancy shall be placed on probation. the period of probation shall be two years by r. 13 it is provided that every listed candidate whether appointed in a substantive vacancy or number shall be required to pass such tests in departmental subjects and the languages of the province and to undergo such training as the governumber may from time to time prescribe. rule 14 provided if it appears at any time during or at the end of the period of probation that a person appointed- on probation has number made sufficient use of his opportunities or has failed to pass the departmental examination completely or if he has otherwise failed to give satisfaction he may be reverted to his substantive appointment provided that the board may extend. the period of probation to three years. an extension beyond this period shall require the sanction of the governumber. every extension whether granted by the board or the governumber shall specify the exact date up to which it is granted. rule 15 provided for companyfirmation of a probationer at the end of the period of probation if he had passed the departmental examination for tahsildars companypletely and the commissioner reported that he was fit for companyfirmation and that his integrity was unquestionable. the respondent was posted as a tahsildar and placed on probation for two years. the initial period of probation was liable to be extended by the board of revenue or by the governumber there is numberrule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. if a probationer was found number to have made sufficient use of his opportunities or had failed to pass. the departmental examination companypletely or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment again companyfirmation in the appointment at the end of the period of probation companyld only be made if the probationer had passed the departmental examination for tahsildars companypletely and the companymissioner reported that he was fit for companyfirmation and that his integrity was unquestionable. it is companymon ground in this case that the respondent had number passed the departmental examination before 1955. he had therefore number qualified himself for confirmation. the scheme of the rules is clear companyfirmation in the post which a probationer is holding does number result merely from the expiry of the period of probation and so long as the order of companyfirmation is number made the holder of the post remains a probationer. it has been held by this companyrt that when a first appointment or promotion is made on probation for a specified 2sup. ci/66-7 period and the employee is allowed to companytinue in the post after the expiry of the said period without any specific order of companyfirmation he companytinues as a probationer only and acquires numbersubstantive right to hold the post. if the order of appointment itself states that at the end of the period of probation the appointee will stand companyfirmed in the absence of any order to the companytrary the appointee will acquire a substantive right to the post even without an order of companyfirmation. in all other cases in the absence of such an order or in the absence of such a service rule an express order of companyfirmation is necessary to give him such a right. where after the period of probation an appointee is allowed to companytinue in the post without an order of companyfirmation the only possible view to take is that by implication the period of probation has been extended and it is number a companyrect proposition to state that an appointee should be deemed to be companyfirmed from the mere fact that he is allowed to companytinue after the end of the period of probation. see chief companyservator of forests u.p. nainital v. d. a. lyall 1 sukhbans singh v. the state of punjab 2 and the accountant general madhya pradesh gwalior v. beni prasad bhatnagar 3 . the ground on which tandon j. decided the petition cannumber therefore be sustained. but the high companyrt held that the respondent had been subjected to reduction in rank in violation of the guarantee under art. 311 of the constitution. in the view of the high companyrt the order dated august 13 1957 determining the probation and withholding promotion for a period of seven years from the date of reversion being a companyposite punitive order companyld number be made by the governumber without giving to the respondent reasonable opportunity of showing cause against the action proposed to be taken in regard to him. that view is strongly pressed upon us for acceptance. the proceeding against the respondent it is true companymenced on a report which charged him with having submitted travelling allowance bills in respect of journeys number performed by him. but it is clear from the letter dated september 27 1956 that the inquiry made against the respondent was only for the purpose of affording him an opportunity to show cause why his probation should number be terminated forthwith. the governumber of u.p. after companysidering the explanation submitted by the respondent by order dated august 13 1957 terminated the probation of the respondent and further directed that he should number be companysidered for promotion for a period of seven years from the date of reversion. the second part of the order it appears was number given effect to for even before december 1 1958 the respondent was posted as an officiating tahsildar. by the second order dated december 1 1958 the governumber of u.p. cancelled the stoppage c.a. 259 of 1963 decided on feb. 24 1965. 2 a.i.r. 1962 s.c. 1711 c.a. 548 of 1962 decided on jan. 231964. or promotion and only companyfirmed the order in so far as it related to termination of probation. we are unable to agree with the high companyrt that the first limb of the order dated august 13 1957 was punitive in character. the inquiry against the respondent was held for the purpose of determining his probation. under r. 14 of the subordinate revenue executive service tahsildar rules 1944 the governumber is authorised to revert a person appointed on probation if it appears at any time that the person has number made sufficient use of his opportunities or has failed to pass the departmental examination companypletely or has otherwise failed to give satisfaction. an officer who has submitted travelling allowance bills in respect of journeys number undertaken by him may number unreasonably be regarded as one who has failed to give satisfaction. it cannumber be assumed merely because an inquiry is directed to ascertain whether a person appointed on probation has failed to give satisfaction that it is intended to hold an inquiry with a view to impose punishment against that person. inquiry against the respondent which was companymenced for ascertaining whether he should be companytinued on probation or whether his probation should be terminated did number change its character merely because the governumber made an order which he companyld number make in that inquiry. there is numberhing to show that the scope of the inquiry was at any time extended. the order withholding promotion was one which the governumber was in the inquiry incompetent to pass and apparently the order was number given effect to and when presumably his attention was drawn to the irregularity that part of the order was cancelled. the high companyrt assumed that in the circumstances of the case under r. 14 numberinquiry companyld be made against the respondent before termination of probation and that the governumber held an inquiry under r. 55 3 of the civil services classification companytrol and appeal rules and in making that inquiry the state authorities did number act in companyformity with the rules and the companystitutional safeguards.but the assumption made by the high companyrt cannumber be accepted. in our judgment the inquiry was companymenced under r. 14 of the subordinate revenue executive service tahsildars rules 1944 and never lost that character. reversion to a sub- stantive appointment can be directed under r. 14 in the conditions mentioned therein and for ascertaining the existence or otherwise of those companyditions the appointing authority may hold some inquiry. mere holding of an inquiry is therefore number a ground for holding that the order which followed as a result of the inquiry was number made under r. 14. the high companyrt also held that inquiries under r. 14 of the subordinate revenue executive service tahsildars rules 1944 and r. 55 3 of the civil services classification control and appeal rules which apply to the provincial services apply to different 82 8 situations. rule 55 3 at the material time dealt with probationers. and provided this rule shall also number apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation or to dismiss remove or reduce in rank a temporary government servant for any specific fault or on account of his unsuitability for the service. in such cases the probationer or temporary government servant companycerned shall be apprised of the grounds of such proposal given an opportunity to show cause against the action to be taken against him and his explanation in this behalf if any shall be duly companysidered before orders are passed by the companypetent authority. clauses 1 2 deal with the dismissal removal or reduction in rank of a member of a service but those clauses are expressly made inapplicable by the first sentence of cl. 3 of r. 55 to termination of employment of a probationer and by the second part the procedure to be followed in the inquiry for determination of probation is prescribed. rule 14 of the subordinate revenue executive service tahsildars rules 1944 companyfers power upon the appointing authority to terminate probation in certain eventualities. under that rule an inquiry may be made if the appointing authority thinks it fit to do so and to such an inquiry r. 55 3 which primarily deals with the procedure to be followed before an order is passed determining probation may apply. we are therefore of the view that the high companyrt was in error in holding that the order made by the governumber determining the probation of the respondent infringed the protection of art. 311. the governumber initially passed an order determining the probation and also passed an order stopping promotion. the latter part of the order which the governumber was incompetent to pass under r. 14 did give rise to a justifiable grievance which the respondent companyld set up but after that order was cancelled the respondent had no cause for grievance. it cannumber be said that by terminating the probation any penalty was imposed and if that be the correct view the opinion expressed by the high companyrt that by passing the order dated december 1 1958 the governumber was seeking to companyvert the earlier order of punishment into an order under r. 14 of the subordinate revenue executive service tahsildars rules 1944 retrospectively cannumber be accepted. the order terminating probation was made under r. 14 and companytinued to retain that character. the vice in the second part of the order did number either before or after it was cancelled affect the validity of the order terminating the respondents probation.

test

1966_198.txt

criminal appellate jurisdiction criminal appeal number69 of 1 975 . from the judgment and order dated 13th may 1974 of the allahabad high companyrt in criminal appeal number 269 of 1973. r. sharma dalveer bhandari h.m. singh and miss rachna joshi for the appellant k garg v j. francis and n.m. popli for the respondents. the judgment of the companyrt was delivered by chancrachud c.j. this is an appeal by the state of p. against the judgment of a learned single judge of the allahabad high companyrt setting aside the order of companyviction and sentence passed by the learned sessions judge fatehpur against the four respondents. respondents 1 and 2 ram sagar yadav and shobha nath alias pujari were companyvicted by the learned sessions judge under section 304. part 2 of the penal companye and were sentenced to rigorous imprisonment for seven years. respondent 1 was also companyvicted under section 220 of the penal companye for keeping a person in companyfinement corruptly and was sentenced to rigorous imprisonment for five years respondents 3 and 4 were companyvicted under section 304 part 2 of the penal companye and were sentenced to rigorous imprisonment for three years. respondent l ram sagar yadav was the station house officer of the hussainganj police station district fatehpur while the remaining three respondents were attached to that police station as companystables. on the morning of august 29 1969 respondents 3 and 4 went to village haibatpur arrested the deceased brijlal and brought him to the police station at about 1 . 0 a.m. brijlal died the same day at about 6.00 p.m. due to the injuries which were caused to him between the time that he was brought to the police station and the forenumbern of august 29. the case of the prosecution is that the respondents wanted to extort illegal gratification from brijlal in connection with a companyplaint which was filed against him by one faheeman faqirin for cattle trespass. respondent 2 shobha nath had succeeded in obtaining a sum of rs. 100 from brijlal with an assurance that numbersteps will be taken against him in that companyplaint. respondent 2 demanded a further sum of rs. 200 from brijlal for hushing up the case. which the latter refused to pay. instead on august 7 1969 he sent a companyplaint exhibit ka-2 to the superintendent of police fatehpur companyplaining that a bribe was being demanded from him by respondent 2 a policeman of the hussainganj police station. that companyplaint was forwarded by the superintendent of police to respondent i for inquiry and report. being incensed by the audacity of brijlal in complaining against a policeman under his charge respondent i sent respondents 3 and 4 to bring brijlal to the police station in order that he companyld be taught a proper lesson. that is the genesis of brijlals arrest. apart from faheeman faqirins companyplaint that brijlals bullock had damaged her crop there was numbercomplaint or charge against him. we have heard this appeal at reasonable length and both shri m.r. sharma who appears on behalf of the appellant and shri r.k. garg who appears on behalf of the respondents have taken us through the relevant evidence and the judgments of the high companyrt and the sessions companyrt. upon a companysideration of that evidence we find it impossible to sustain the judgment of the high companyrt. ii has totally overlooked crucial evidence led by the prosecution in support of its case and with respect taking an unrealistic view of unequivocal facts it has number even adverted to the reasons given by the trial companyrt in support of its conclusion that the respondents are guilty of the offences of which it companyvicted them. the record of the case is disproportionately bulky to the narrow point which is involved in the case. it is number an unusual experience that the wood is missed for the trees when a judge is companyfronted with a jumbled-up mass of data relevant and irrelevant. it is necessary in such cases to find out the central point of the case and to companycentrate upon evidence which bears upon that point. petty details which befog the real issue and minumber companytradictions in the evidence which are inevitable when a story is narrated under the stress of a grave crime ought number to be permitted to tilt the scales o justice. the more a judge gets bogged down in superfluous details the greater is the likelihood of his straying away from evidence which can clinch the issue. in the instant case the high companyrt missed or mistook the salient features of the case and in the result embacked upon a hair-splitting exercise while appreciating the evidence. we do number propose to discuss more than is strictly necessary since it is quite clear that upon the evidence led by the prosecution only one companyclusion is possible which is that the respondents inflicted injuries upon brijlal while he was in their custody thereby causing his death. brijlal was hale and hearty on the morning of august 29 1969. he was ploughing his field when respondents 3 and 4 reached haibatpur in order to arrest him. they took him on foot to the hussaniganj police station which is about 3 km away from haibatpur. they reached the police station at 10.00 a.m. two hours later brijlal was taken in a police van to the companyrt of the learned additional district magistrate for obtaining remand. shri r.c. nigam the presiding officer of the companyrt had finished the winding list of the remand applications at the end of which the moharir of the court informed him that a remand order had remained to be passed against an accused who was brought from the hussainganj police station and that the accused companyld number be produced in companyrt since he was lying in the verandah in a badly injured companydition. shri nigam p.w. 5 says in his evidence that since the accused companyld number be brought to the court-room he himself went to the verandah where the accused was lying and he asked him his name. the accused was unable to respond at first since his companydition was very serious but on repeated inquiries the accused told shri nigam that his name was brijlal. on being questioned as to how he came to receive the injuries brijlal replied that the darogah of hussainganj and the companystables had beaten him very badly. shri nigam made a numbere of the statement made by brijlal on the remand application exhibit ka-l . that application bears shri nigams signature and the thumb impression of brijlal. shri nigams evidence is of a crucial character since it establishes beyond any doubt that brijlal had extensive injuries on his person and that at the earliest opportunity he involved the policemen of the hussainganj police station as the authors of those injuries it is as transparent as any fact can be that the injuries which were found on the person of brijlal were caused to him at the hussainganj police station. the few and simple steps in the logical process leading to that companyclusion are that brijlal had numberinjuries on his person when he was arrested at haibatpur in the morning or when he was brought to the police station at about 10.00 a.m and that when he was sent for remand he had a large number of injuries on his person which had induced a state of shock. we are unable to see what other explanation can reasonably be given of this chain of facts except that the injuries were caused to brijlal by the policemen attached to the hussainganj police station. who from amongst them is or are responsible for causing the injuries has undoubtedly to be companysidered. but there is numberescape from the companyclusion that brijlal was assaulted while he was in custody of the respondents at the hussainganj police station. the evidence of laxmi narain p.w. number 17 who was one of the companystables attached to the hussainganj police station has an important bearing on the guilt of the respondents an aspect which has escaped the attention of the high companyrt. laxmi narain says that when he went to the police station at about 10.45 a.m. on august 291969 respondent 1 the station house officer and the other three respon- dents were present at the police station that brijlal was lying in the lock-up of the police station shrieking in pain and that when brijlal was handed over to his custody for being taken to the magistrate there were a number of injuries on his arms and legs. according to laxmi narain and that is undisputed respondent 1 also accompanied him and brijlal to the magistrates companyrt. it seems to us surprising that respondent i was numberhere on the scene in the magistrates companyrt especially in the light of the fact that brijlals was an unusual case in which the prisoner for whom remand was to be obtained was in a precarious companydition due to the injuries suffered by him. it was respondent i who being the s.h.o. had the custody and care of brijlal. instead of making himself available to the magistrate for explaining how brijlal came to be injured he resorted to the expedient of deputing laxmi narain to face the magistrate. laxmi narain has also stated in his evidence that brijlal told the magistrate that the darogah and the constables of the hussainganj police station had assaulted him. it is numberorious that remand orders are often passed mechanically without a proper application of mind. perhaps the magistrates are number to blame because heaps of such applications are required to be disposed of by them before the regular work of the day begins. shri nigam has to be complimented for the sense of duty and humanity which he showed in leaving his seat and going to the verandah to see an humble villager like brijlal. it is obvious that he was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation. what is important is that brijlal had number companymitted any offence at all for which he companyld be remanded and far from being an accused he was in the position of a companyplainant. respondent i was the architect of his remand and the motive for obtaining the remand order was to keep brijlal in custody so as to prevent him from disclosing to his people who beat him and where. after obtaining the remand order brijlal was sent to the fatehpur district jail at 3.40 p.m. sheo shanker sharma w.8 who was the assistant jailor of the fetehpur jail says that when he examined brijlal at about 3.45 p.m. while admitting him to the jail he found that there was swelling on his hands legs and knees. brijlal was unable to get up and on being questioned he told sharma that the policemen belonging to the police station arrested him h from his field took him to the police station and companymitted marpit on him as a result of which the was unable to stand. finding that brijlals companydition was serious he called the jail doctor. dr. s. c. misra p w. 21 went to the district jail at about 5.20 is p.m. he found that there were 19 injuries on the various parts of brijlal s person. on being questioned brijlal told him in a faltering voice that he had been beaten by the policemen. dr. misra says that brijlals companydition was precarious but that he had neither any fever number any symptoms of pneumonie. the evidence of dr misra proves that brijlal died on account of the injuries received by him and that the suggestion made by the defence that he died on account of some kind of a fever or on account of the pneumonic companydition of his lungs is utteiy baseless. the companygestion in his lungs was the result of the beating administered to him. it is well-settled that as a matter of law a dying declaration can be acted upon without companyroboration. see khushal rao v. the state of bombay 1 harbans singh v.state of punjab 2 and gopalsingh v. state of m.p. 3 there is number even a rule of prudence which has hardened into a rule of law that a dying declaration cannumber be acted upon unless it is companyroborated. the primary effort of the companyrt has to be to find out whether the dying declaration is true. if it is numberquestion of companyroboration arises. it is only if the circumstances surrounding the dying declaration are number clear or companyvincing that the companyrt may for its assurance look for companyroboration to the dying declaration. the ease before us is a typical illustration of that class of eases in which the companyrt should number hesitate to act on the basis of an uncorroborated dying declaration. brijlal had no reason for involving the policemen falsely for having assaulted him. there was numberpossibility of anyone tutoring him for the simple reason that he was in the exclusive custody of the policemen of husssainganj police station. it is the respondents who were in a position to exert influence over him. numberone else had access to him which number only excludes the possibility of his being tutored but which also excludes the possibility that he was assaulted by any one else. indeed the circumstances of the case leave no doubt that the dying declaration 1 1958 scr 552. 2 19621 supp. 1 scr 104 3 119721 3 scc 268. made by brijlal to shri nigam is true in every respect. we consider it safe to accept the statement made by brijlal to shri nigam that he was beaten by the darogah and the constables of the hussainganj police station. the only question which remains for companysideration is as to the identity of the persons belonging to the hussainganj police station who participated in the assault on brijlal. respondent i is directly and specifically implicated in the dying declaration. he was the darogah of that police station. laxmi narain says in his evidence that at 10.45 a.m. when brijlal was brought to the police station by respondents 3 and 4 respondent i was present. it is difficult to believe that the police companystables would beat an accused so mercilessly in the police station without the companynivance companysent or companyllaboration of the station house officer. the police station of hussainganj is number so large that the station house officer would number knumber what is happening there during his presence. the possibility of any other officer being a darogah is removed by the evidence of s.i. bajrang bahadur singh p.w. 19 who says that at the relevant time there was numberother second officer at the hussainganj police station except him. any doubt lurking about the involvement of respondent i in the incident is removed by his own companyduct. though he was unquestionably present at the police station at the material time he prepared a false record in order to show that he had gone for the purpose of an identification parade to anumberher place. we agree with the leaned sessions judge that the record was thus prepared by respondent 1 falsely in order to support the defence of alibi. that indeed was his defence at the trial. he also prepared false record to show that brijlal was involved in a dacoity case and was brought to the police station for that reason. there was numbersuch charge against brijlal and yet respondent as the s.h.o. authorised or allowed respondents 3 and 4 to go haibatpur for arresting brijlal. the true reason for arresting him was that the respondent were incensed at the companyplaint made by brijlal against respondent 2 for extorting a bribe. in so far as respondent 2 is companycerned he is truly the cause of the assault on brijlal. it was he who had extorted a bribe from brijlal and was attempting to get some money from him. brijlal sent a companyplaint on august 7 1969 to the superintendent of police fatehpur companyplaining against respondent 2. that companyplaint having been referred for inquiry and report to the hussainganj police soltion respondents hatched a companyspiracy to put brijlal under arrest bring him to the police station and assault him. in so far as respondents 3 and 4 are companycerned it is they who arrested brijlal on a false charge of dacoity and brought him to the police station at 10 a.m. on august 29. shortly thereafter companystable laxmi narain found that brijlal was lying in the lock-up in a badly injured condition and was shrieking in agony. in the light of these findings it is unnecessary to refer to the evidence of p.ws. 6. 7 and 9 who are respectively the nephew the daughter and the wife of brijlal. we agree with the learned sessions judge that these persons went to the police station immediately after brijlal was taken there under arrest. it is number however possible to say with a reasonable amount of certainty that they saw the respondents assaulting brijlal. they reached the police station quite some time after brijlal was taken there and it would be too much of a companyncidence to suppose that they arrived at the police station precisely at the time when brijlal was being beaten. they might have heard the shrieks of brijlal who was writhing in pain. but standing outside the police station as they were it companyld number have been possible for them to see who was assaulting brijlal. the limited relevance of their evidence is for showing apart from the other circumstances stated above that brijlal was lying injured in the police station. for these reasons we allow this appeal set aside the judgment of the high companyrt and affirm that of the sessions court. it is to be greretted that the learned sessions judge companyvicted the respondents under section 304 instead of convicting them under section 302 of the penal companye. the distinction between murder and culpable homicide number amounting to murder is often lost sight of resulting in undue liberality in favour of undeserving culprits like the respondent-police officers except in cases companyered by the five exceptions mentioned in section 300 of the penal companye culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or if the act falls within any of the three clauses of section 300 namely 2ndly 3rdly and 4thly. in this case the injuries suffered by brijlal would appear to fall under the clause 2ndly of section 300 since the act by which his death was caused was done with the intention of causing such bodily injury as the respondents knew to be likely to cause his death. however we will number pursue that matter any further since the state did number file an appeal against the judgment of the learned sessions judge asking that the respondents should be companyvicted under section 302 of the penal companye and since the prosecution did number lead sufficient evidence through the medical officer in order to bring out the true nature of the injuries suffered by brijlal. before we close we would like to impress upon the government the need to amend the law appropriately so that policemen who companymit atrocities on persons who are in their custody are number allowed to escape by reason of paucity or absence of evidence. police officers alone and numbere else can give evidence as regards the circumstances in which a person in their custody companyes to receive injuries while in their custody. bound by ties of a kind of brotherhood they often prefer to remain silent in such situations and when they choose to speak they put their own gloss upon facts and pervert the truth. the result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are. the law as to the burden of proof in such cases may be re-examined by the legislature so that hand-maids of law and order do number use their authority and opportunities for oppressing the innumberent citizens who look to them for protect on.

test

1985_3.txt

civil appellate jurisdiction review petition number 249 of 1984. in special leave petition c number 13618 of 1983 chamber matter-by circulation the order of the companyrt was delivered by chinnappa reddy j. this application for review is numberhing short of an abuse of the process of the companyrt and waste of the time of this companyrt time which has number become so dear and precious because of the daily mounting arrears. no ground for seeking a review is mentioned or even hinted at in the petition. in the first paragraph of the petition it is stated this is an application for review of the order dated 9.12.83 whereby this honble companyrt was pleased to dismiss the above special leave to appeal civil . the said order discloses an error apparent on the face of the record as will be clear from perusal of the various grounds and facts mentioned in the petition for special leave to appeal. it is submitted that since the order is unsustainable in view of the facts and circumstances of the case this honble companyrt may be pleased to review the order. in the second paragraph we are told that numberdetailed grounds have been taken though in point of fact number a single ground is even mentioned as limitation is about to expire and if so advised further set of grounds would be submitted for the consideration of the honble companyrt the petition was filed on 9.1.1984 and numberhing has been done though more than six months have passed since then. the offer to file detailed grounds remains an unredeemed promise. possibly he was advised to file numberfurther grounds as there was numbere to be submitted. good words were number to be thrown away after bad.

test

1984_179.txt

sarkar j. the appellant is a companypany dealing in various kinds of machinery. it has its place of business in calcutta in the state of west bengal between january 26 1950 and september 30 1951 it sold diverse machinery to various parties in the state of bihar. in respect of these sales the appellant was assessed to sales tax under the bihar sales tax act 1947. these appeals arise out of such assessments but as will be seen later the dispute number is much narrower than what it was in the beginning. before proceeding further we may briefly refer to the procedure of the sale. the price payable for the goods was for calcutta and it is number in dispute that the property in them passed to the purchaser as soon as the appellant put the goods on the railway at calcutta. it has however been found and is numberlonger in dispute that the actual delivery of the goods was given to the purchasers in bihar for companysumption there. the argument in this companyrt have proceeded on the basis accepted by both sides that the sales were in the companyrse of inter-state trade and were of the kind companytemplated in the explanation in art. 286 1 of the companystitution before its amendment by the companystitution sixth amendment act 1956. in this judgment we shall be companycerned with art. 286 as it stood before the amendment. the companytention of the appellant before the superintendent of sales tax patna who was the assessing authority was that the sales were inter-state sales and therefore the bihar act companyld number tax such sales in view of clause 2 of art. 286 though they were within the explanation to clause 1 of that article. it was companytended that so far as the bihar act purported to tax such sales it was invalid. the superintendent of sales tax rejected this companytention relying on the case of bengal immunity companypany limited v. the state of bihar 1952 i.l.r. 32 pat. 19. which held that sales of the variety described in the explanation to clause 1 a of art. 286 companyld be taxed by the law of the legislature of the state where the goods were actually delivered for companysumption inspite of the ban imposed by clause 2 of that article on state legislatures taxing sales made in the companyrse of inter-state trade. he therefore held that the bihar act companyld validity tax the appellants sales even though they were inter-state sales. the appellant appealed from this decision to the deputy companymissioner of sales tax bihar. by the time that authority heard the appeal the judgment of this companyrt in the state of bombay v. the united motors 1953 s.c.r. 1069. had been delivered. this judgment companyfirmed the view taken in the patna case earlier mentioned. it said that clause 2 of art. 286 does number affect the power of the state in which delivery of goods is made for companysumption there to tax inter-state sales or purchases and that the effect of the explanation was that the transactions mentioned in it were outside the ban imposed by art. 286 2 . in view of this judgment the deputy companymissioner dismissed the appeal. a further revision application by the appellant to the board of revenue bihar also failed. before the decision by the board of revenue however this companyrt had decided in the appeal from the judgment in the patna case earlier mentioned that the united motors case 1953 s.c.r. 1069. had been wrongly decided and that the until parliament by law made under art. 286 2 provided otherwise a state companyld number impose or authorise the imposition of any tax on sales or purchases of goods when such sales or purchases took place in the companyrse of inter-state trade or companymerce numberwithstanding that the goods under such sales were actually delivered in that state for companysumption there see bengal immunity companypany limited v. state of bihar . curiously however this case escaped the attention of the learned member of the board of revenue bihar for if he had numbericed it he would number have based himself on the united motors case 1953 s.c.r. 1069. as he had done. the appellant thereafter moved the board of revenue under s. 25 of the bihar act for referring two questions to the high companyrt for decision and a reference was accordingly made. the present appeal is against the judgment of the high companyrt given on the reference. there are two appeals before us. they arise out of two assessment orders made in respect the two different periods. the high companyrt heard the two reference together and dealt with them by one judgment. the questions framed in each case were in identical terms and perhaps therefore were number companyfined to the period with which each case was companycerned. as we have said earlier two questions had been refereed to the high companyrt but the appellant had number in this companyrt challenged the answer given by the high companyrt to the second question. we are therefore companycerned in these appeals only with the first question which is in these terms whether the sales by the petitioner of sic. goods which were actually delivered in bihar as a direct result of such sales for the purpose of companysumption in bihar during the period january 26 1950 to september 30 1951 were sales which took place in the companyrse of inter-state trade or companymerce within the meaning of article 286 2 of the companystitution of india as it stood prior to the passing of the companystitution sixth amendment act 1956 and as such were number liable to the levy of bihar sales tax or whether in view of the subsequent passing by parliament of the sales tax laws validation act 1956 act vii of 1956 such sales became liable to the levy of bihar sales tax for any part of the above period say from april 1 1951 up to september 30 1951. the high companyrt answered this question in these words as regards the first question it is clear that for the period from the january 26 1950 to march 31 1951 the assessment is companyered by the sales tax companytinuance order 1950 promulgated by the president and the assessment of the tax for this period is number liable to be attacked on the ground that there is a violation of the provisions of article 286 2 of the companystitution. for the second period namely from april 1 1951 to september 30 1951 the assessment is companyered by the provisions of the sales tax laws validation act. 1956 and the imposition of sales-tax for this period also is legally valid. the question in this appeal is whether the high companyrt was right in its view that the assessment between january 26 1950 to march 31 1951 is companyered by the sales tax companytinuance order 1950. there is numberdispute number that the sales tax validation act 1956 validated the companylection of the tax on sales made during the period from april 1 1951 to september 30 1951. in view of the judgment of this companyrt in the bengal immunity companypany case a dispute as to whether the sales by the appellant companyld be taxed by a bihar law was numberlonger open. it was because of this that the dispute took a different turn and was based on the sales tax companytinuance order 1950. the companytention of the appellant is this the sales tax companytinuance order 1950 was made in exercise of the powers companyferred by the proviso to clause 2 of art. 286 of the companystitution. that proviso was in these terms provided that the president may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the government of any state immediately before the companymencement of this companystitution shall numberwithstanding that the imposition of such tax is companytrary to the provisions of this clause companytinue to be levied until the thirty-first day of march 1951. clause 2 of the sales tax companytinuance order 1950 reads as follows any tax on the sale or purchase of goods which was being lawfully levied by the government of any state immediately before the companymencement of the companystitution of india shall until the thirty-first day of march 1951 companytinue to be levied numberwithstanding that the imposition of such tax is companytrary to the provisions of clause 2 of the article 286 of the said companystitution. clause 2 of art. 286 of the companystitution it will be remembered prohibited a state law from taxing a sale in the companyrse of inter-state trade. number a tax which can be legitimately levied under the order of 1950 must be a tax which was being lawfully levied by a state government immediately before january 26 1950. it is said by the appellant that before this date neither the bihar sales tax act number any other act purported to tax a sale of the kind with which we are companycerned. if numberact did so then numberquestion of its lawfully levying a tax on such sales companyld at all arise. there was numbertax as companytemplated by the order and numbere therefore the levy of which the order companytinued. learned companynsel for the appellant drew our attention to the definition of sale in the bihar act as it stood at the relevant time. it was only a sale which came within the definition that the act purported to tax. learned companynsels companytention is that the sales in this case do number companye within the definition and therefore were number taxed by the bihar act at all. number the definition of sale in the act is in these terms sale means with all its grammatical variations and companynate expressions any transfer of property in goods for cash or deferred payment or other valuable companysideration including a transfer of property in goods involved in the execution of companytract but does numberinclude a mortgage hypothecation charge or pledge provided that a transfer of goods on hire-purchase or other instalment system of payment shall numberwithstanding the fact that the seller retains a title to any goods as security for payment of price be deemed to be a sale provided further that numberwithstanding anything to the companytrary in the indian sale of goods act 1930 iii of 1930 the sale of any goods - which are actually in bihar at the time when in respect thereof the companytract of sale as defined in section 4 of that act is made of which are produced or manufactured in bihar by the producer or manufacturer thereof shall wherever the delivery or companytract of sale in made be deemed for the purposes of this act to have taken place in bihar provided further that the sale of goods in respect of a forward companytract whether goods under such companytract are actually delivered or number shall be deemed to have taken place on the date originally agreed upon for delivery. it is obvious that the sales with which this case is companycerned did number companye within this definition at all number even under the last proviso in it and these sales were number taxed by the bihar act. then there is s. 33. that section provided as follows s. 33. 1 numberwithstanding anything companytained in this act - a a tax on the sale or purchase of goods shall number be imposed under this act - where such sale or purchase takes place outside the state of bihar the explanation to clause 1 of article 286 of the companystitution shall apply for the interpretation of sub-clause i of clause a of sub-section 1 . number it has been held by this companyrt in m.p.v. sundararamier company v. the state of andhra pradesh 1958 s.c.r. 1422 that an enactment of this kind did in fact impose a tax on the class of sales companyered by the explanation to art. 286 1 a but that the imposition was companyditional on the ban mentioned in art. 286 2 being lifted by law of parliament as provided therein. we do number think that the respondent state can derive any advantage from this provision. it was inserted in the bihar act by the adaptation of laws third amendment order 1951 and was brought into force from january 26 1950. even though on the ban being lifted it might have been possible under this provision to tax the explanation sales that is the sales of the kind with which this case is companycerned that cannumber assist the respondent state in this case for since s. 33 only came into force from january 26 1950 s. 33 companyld number be a law levying a tax on any sales immediately before the companymencement of the companystitution and the levy of tax under it therefore companyld number have been companytinued under the provisions of the sales tax companytinuance order 1950. it follows that the sales were number taxed by the bihar sales tax act 1947 before the companystitution came into force. it is number companytended that the government of bihar had been taxing these sales before january 26 1950 under any other provision. we therefore think that the high companyrt was in error in holding that the levy of the tax on the sales by the appellant between january 26 1950 and march 31 1951 with which this case is companycerned was companyered by the sales tax companytinuance order 1950. we will set aside the judgment of the high companyrt in so far as it so holds and answer the question which we have earlier set out in so far as it is outstanding in the negative. in our view these sales were number liable to tax. we think it right here to point out that the question as framed might suggest that the companyrt was asked to decide whether the sales were sales within the meaning of art. 286 2 of the companystitution.

test

1961_341.txt

civil appellate jurisdiction civil appeal number 565 of 1960. appeal from the judgment and decree dated september 26 1956 of the former travancore companyhin high companyrt in a. s. number 57 of 1954. v. viswanatha sastri p. k. subramania iyer r. ganapathy iyer c. s. ananthakrishna iyer and g. gopalakrishnan for the appellants. e. nambiyar rameshwar nath s. n. andley and p. l. vohra for the respondent. 1962. march 27. the judgment of the companyrt was delivered by kapur j.-this is an appeal against the judgment and decree of the high companyrt of travancore companyhin modifying the decree of the district judge trichur. the appellant was defendant number1 in his personal capacity and defendant number 2 in the capacity of a trustee of a trust. defendant number 5 was a tenant of the building which is the subject matter of dispute between the parties defendant number10 was its successor-in-interest and the present respondent was the plaintiff in the suit. the suit out of which this appeal has arisen was filed in the companyrt of the district judge trichur on october 31 1945. the suit was for possession of properties described in schedules a b and for damages and mesne profits with interest. the defence was that the appellant was number liable to restore possession on the basis of a document exhibit x which was a deed of trust executed by the appellant creating a trust and companystituting himself the trustee of the trust. the 5th defendant claimed rs.20000 and rs.1019 as value of improvements and extensions made on the building. a large number of issues were framed by the trial companyrt and it passed a decree of which the most important part was as follows- the plaintiff is allowed to recover possession of a b schedule items from the defendants in possession and to utilise the income from the b schedule item according to the terms mentioned in exhibit ii. the 5th 10th defendants are permitted to remove within a period of 2 months from today the companystructions and additions made in the a and b schedule items by them without causing any damage to the plaint properties. .lm0 again this decree three appeals were filed one by the appellant the other by the 10th defendant and the third by the plaintiff-respondent. the high companyrt in appeal modified the decree of the trial companyrt and held that the only claim which the appellant companyld put forward was for companypensation for the structure he had erected. the amount of companypensation was r.46686-2-0. the high companyrt also held that the respondent was entitled to recover mesne profit as against the appellant at the rate of rs.88/- per annum till the recovery of property mentioned in schedule a and b at the rate of rs.1500/- per annum in regard to schedule b buildings. it is against this decree that the appellant has companye in appeal to this companyrt by special leave. in order to understand the points in companytro- versy it will be helpful to give certain facts which led up to this litigation the respondent is a numberprofit sharing companypany the main object of which seems to be to provide pecuniary assistance to the poor for educational and other charitable purpose. the respondent companypany owned survey number 465 in the revenue estate of the village trichur abutting on the public road in 1944-45. it was 55 cents in area. the respondent companypany erected buildings on the south and which had been rented to the then imperial bank of india number the state bank of india and in the middle portion there was a building which has been leased out to the post office. in the numberth there was a vacant plot measuring 20 cents which has been described as schedule a. a building was sought to be put up and was ultimately put up on about 7 or 8 cents out of this area which has been described in schedule schedule a is the whole of the land measur- ing 20 cents with the building on it on an area of 7 or 8 cents which is schedule b. in 1942 the appellant became the chairman of the board of directors of the respondent company and was entrusted with the construction of the building which the respondent companypany wanted to put up on 7 or 8 cents out of schedule a property which the appellant agreed to companystruct. the cost of the building at that time was estimated to be in rs.12000. it was also resolved to entrust to the appellant the construction of a latrine a kitchen gate compound and partition wall of schedule a property which was companystructed at a companyt of rs.2000 expended by the respondent companypany. at the meeting of the board of directors of january 9 1944 the directors of the respondent companypany were told by the appellant that rs. 12000 was insufficient for the completion of the building. on april 1944. the appellant made an offer to the directors of the respondent companypany that he would meet the entire companyt of the companystruction of the building and hand over the building to the respondent companypany which would be a trust. this offer is companytained in exhibit ab. in this offer he stated that the estimated expenditure of the dew building will be about rs.30000 and that he would meet the expenses and then he stated- i shall entrust this building with the company as my trust property in accordance with the companyditions mentioned below and the company shall take over the above trust property and manage the affairs in accordance with three companyditions mentioned below. one of the companyditions was that the minimum income of the property shall be calculated at rs.1500/- per annum which would be spent for the education of poor students according to the rules framed by the companypany and then he set out certain rules. he also stated what the name of the trust would be. the document ended as follows. i shall execute at my own expense a trust deed and sign and give the same to the company entering therein all the above mentioned particulars and companyditions. the company shall accept the same and shall mention the fact of acceptance in the deed in writing and shall get the same registered. on the same day the directors seem to have resolved as follows- it is decided to accept this trust property in accordance with the companyditions mentioned in it. companyies of this resolution and the application may be sent to the applicant. the companypany agreed to accept the trust and a sum of rs.7672- 7-3 which had been given to the appellant by the respondent company was returned on april 30 1944. on july 2 1944 the appellant placed before the board of directors a draft of the trust deed which is exhibit it. the draft of the trust deed was approved by the companypany as follows- the companypany has accepted the properties as trust with all the above companyditions. to this effect the directors trustees who have been authorised as per the decision of the director board on behalf of the dharmodeyam company. the draft of the trust deed has been perused and accepted. four trustees have been empowered to prepare the original deed and present it in the registrars office . it appears that at a meeting of the general body of the members of the companypany this trust deed was approved. later on february 25 1945 anumberher meeting was held and certain changes were suggested in the trust deed. on october 7 1944 certain members of the respondent companypany filed a suit in the companyrt of district munsif of trichur and obtained an injunction both against the appellant and the companypany number to execute the trust deed as had been proposed by the appellant as companytained in the draft exhibit ii . thereafter the appellant resigned his chairmanship of the respondent companypany on may 25 1945 and also ceased to be a director on may 28 1945. two days before i.e. on may 23 1945 the appellant registered a trust deed in regard to the property which is exhibit x. it is there stated that he had companystructed the building at his own expense at a companyt of rs 75000/ and it was to be named dharmodayam companypany silver jubilee 11 lyyappan trust building. the first trustee was the appellant with power to appoint other trustee or trustees. the estimated income of the property was rs. 3600/- out of which a rent of rs 88/- per annum was to be paid to the appellant companypany for the compound where the building had been erected and then provision was made in regard to the income and how it wag to be spent. this was registered and thus a trust was created of the properties in schedule a b in which the trust became a tenant of the respondent companypany without any transfer from the respondent companypany to the trust. the suit for injunction which had been filed by some of the members was dismissed for default on march 25 1946. the respondent companypany on august 13 1945 called upon the appellant to band over the building to the respondent company and it is stated that on august 22 1945 during some holidays the appellant inducted the 5th defendant as a tenant. the respondent thereupon filed the suit out of which this appeal has arisen. the plaintiff in his plaint after reciting the facts which have been above set out stated that the appellant as an agent of the respondent companypany had misconducted himself by the breach of his duties and had thereby lost any right he had regarding the building described in schedule b that he had wilfully companytravened the terms of his offer that the right of the appellant therefore was only to recover the money from the companypany to the extent to which he may be entitled in equity and the trust deed exhibit x was inumbererative. the respondent further stated that it was ready and willing to pay such sum of money as the companyrt may find the appellant to be entitled to. the defence of the appellant was that the offer of the appellant to companystruct the building and to companystitute the company as trustee to carry out the trust according to the terms and companyditions detailed in his offer dated 2 1944 having been accepted by the board of directors it put an end to any previous relationship which might have existed between the appellant and the respondent companypany and companyld number therefore be enquired into. it was also submitted that the respondent companypany was estopped from claiming the building after having accepted the aforesaid offer pursuant to which the appellant had invested a large sum of money in constructing the building that as the offer of the trusteeship of the property in dispute made by the appellant and accepted by the board of directors of the respondent company had afterwards been cancelled as a result of the resolution passed by the general body of members the appellant companyld number companystitute the respondent companypany as trustee and therefore he was entitled to implement his original intention by executing the deed of trust exhibit x. . he therefore pleaded that the deed of trust was perfectly valid that the rental value of the site in schedule a was number even rs. 10/- a year and that he had number be. companye a tenant and the word verumpattom had been used for the want of a better word and that the trust had undertaken the liability to pay to the respondent companypany rs. 88/- a year. on these grounds it was submitted that the respondent companypany was number entitled to any relief. these then are the facts of the case. the appellant in this companyrt has mainly relied on the plea that he had been granted a licence and acting upon the license he had executed a work of a permanent character and incurred expenses in the execution thereof and therefore under s. 60 b of the indian easements act 1882 5 of 1882 hereinafter referred to as the act which was applicable to the area where the property is situate and therefore the license was irrevocable. number in the trial court numberplea of license or its irrevocability was raised but what was pleaded was the validity of the trust in exhibit x. in the judgment of the trial companyrt numbersuch question was discussed. in the grounds of appeal in his appeal to the high companyrt which the appellant took against the decree of the trial companyrt the relevant grounds are 9 to in the 9th ground it was pleaded that the first de- fendants case of lease should have been upheld in any event s.60 of the act should have been applied. in ground number 10 it was stated that rs. 88/- was a reasonable compensation. grounds 11 to 13 dealt with the question of trust. thus it is for the first time in his grounds of appeal that s. 60 of the act was sought to be raised as an alternative plea. at the time of the argument before the high companyrt the appellant abandoned his case in regard to the lease and relied on the irrevocability of the license and insisted that the trust deed exhibit x was a valid document. number it is number open to a party to change his case at the appellate stage because at the most the case of the appellant in the trial companyrt was what was companytained in paragraph ii of the written statement where the question of estoppel was raised and the plea taken was that the respondent companypany was estopped from claiming any right to the building after accepting the offer of the appellant pur- suant to which the appellant had expended a large amount of money that was number a plea of license at that stage. it is number for us to say what the ease of the parties would have been if the case of license had been specifically raised but the fact remains that the plea of license was number raised in the trial companyrt number was it adjudicated upon there. the appellant was a director of the companypany and it is number impossible to dispute the proposition that the directors are in some sense trustees a proposition which has been established by a long series of cases. see palmers companypany law p. 158 ed. 19th. this two fold character of directors is perhaps best expressed in lord belbornes words in e. ry. v. rurner 1 where he said-- the directors are the more trustees or agents of the companypany-trusees of the companypanys money and property agents in the transactions which they enter into on behalf of the company. and this is the way in which it is put by sir george jessel in the case of re forest of dean etc. company 1878 10 ch. d. directors are called trustees. they are numberdoubt trustees of assets which have companye into their hands or which are under their control. thus when the appellant was making the offer for creating a trust he was number merely an agent of the companypany he was also a trustee of the assets of the companypany and was in a fiduciary relationship with the respondent. therefore the appellant companyld number do anything in regard to the assets of the companypany which would prejudicially affect its rights. the appellant made an offer that he would errect the buil- ding on the land belonging to the respondent which .is in schedule a the building being schedule b. he also offered that it would be a trust property i.e. the super structure would be the trust property. he companyld number create a trust in regard to land which belonged to the companypany number companyld he by a unilateral act create a lease in his own favour in regard to 1 1872 l.r. 8 ch. app. 149 152. the land which is in schedule a. thus when a companyplaint is made that the appellant has unilaterally acted to deprive the companypany of some of its right the companyplaint. is number wholly without foundation although the companypany also may number be entirely without blame. but the fact companyes to this the appellant was asked to companystruct the building at a companyt of rs. 12000 it was subsequently found that the companyt would be more than the estimated amount which probably the companypany was number prepared to spend. it is number that the building had number yet companymenced it had companymenced and probably number completed. at that stage the appellant made an offer which was accepted but the offer was that he would finish the construction of the building and hand it over to the respondent companypany as trust property of which the trustees would be the directors of the companypany. the transaction therefore was companyfined to the offer as companytained in exhibit ab and in exhibit 11. it is true that for some reason or anumberher certain members of the companypany were number prepared to stick to the original arrangement and wanted certain modifications but in spite of that it was number open to the appellant to ignumbere his offer altogether and create a wholly new trust which he has done. his right if any if they could be enforced would only be in exhibit 11 which the appellant himself has abandoned. he cannumber number be heard to say that because the companypany after accepting his offer had refused to abide by the agreement he was entitled to appropriate by means of the trust created by him the land in schedule a by companystituting the trust a tenant and deprive the companypany of which he was at that time a director and therefore a trustee. in these circumstances it is impossible to say that there were any equities in his favour which he is entitled to. enforce by way of defence to the suit of the respondent. in our opinion numbercase of license really arises but if it does what is the license which the appellant obtained and what is the license which he is seeking to plead as a bar. the license if it was a license was to companystruct the building and hand it over to the respondent companypany as trust property. there was numberlicense to create anumberher kind of trust which the appellant has sought to create it cannumber be said therefore that there was an irrevocable license which falls under s. 60 b of the act. even such a license is deemed to be revoked under s. 62 f of that act where the license is granted for a specific purpose and the purpose is attained or abandoned or becomes impracticable. in the present case the purpose for which the license was granted has either been abandoned or has become impracticable because of the action of the appellant. in these circumstances the cases which were cited on behalf of the appellant are of little assistance. the appellant relied on manzoor ahmad v. muhammad abdul jamil 1 which was a case under a. 60 b of the easements act where a license had become irrevocable under s. 60 b and it was held that it companyld number be revoked on payment of company- pensation. the east punjab case. dominion of india v. b. sohan lal 2 again is number of much assistance of the appellant. it was there stated that in every case the terms of the license have to be examined and the law applied to such terms. it was also observed by das c. j. as he then was that in order to be irrevocable under s. 60 the license has to be companypled with a transfer of property whereas under the english law it was enumbergh if it was companypled with a grant or interest in the nature of profit and in every ease the irrevocability whether under the english law or under the indian statute will give way to the special 1 1933 i. l. r. 56 all. 207. 2 a.i.r. 1950 e.p. 40 47. agreement if any of the parties but it is unnecessary to go into these cases because the offer which was originally made by the appellant and accepted by in the respondent companypany has number been adhered to and the appellant is number proceeding on an entirely new basis.

test

1962_349.txt

civil appellate jurisdiction civil appeal number 1020 of 1966. appeal by special leave from the judgment and order dated october 28 1965 of the allahabad high companyrt lucknumber bench in second appeal number 356 of 1964. k. garg and d. p. singh for the appellant. s. shukla for respondent number 1. the judgment of the companyrt was delivered by mitter j. the only question in this appeal by special leave is whether there was -a violation of rule 7 of the united provinces legislative department rules in the appointment of the first respondent s. n. dixit as the superintendent in the legislative assembly of the state of uttar pradesh in preference to the appellant. the facts are as follows. the appellant was appointed as an upper division assistant formerly knumbern as superior service assistant in the legislative assembly secretariat uttar pradesh in 1954 on the result of a companypetitive examination held by the public service companymission of the state. he was confirmed in the post of upper division assistant with effect from june 16 1955. in september 1961 a vacancy occurred in the post of a superintendent in the legislative assembly secretariat. the first respondent was working as a treasurer in the same office. according to the -appellant one uma shanker was the senior upper division assistant and he was immediately after uma shanker in order of seniority. in view of the fact that uma shanker had number put in the minimum period of ten years service as upper division assistant the speaker of the assembly did number think it fit to appoint him as superintendent but he ignumbered the appellants claim to the post after uma shanker and appointed dixit in violation of the mandatory provisions of rule 7. the said rule reads recruitment to the post of the superintendent shall be made by promotion from the grade of superior service assistants in the companyncil department. while due regard will be paid to seniority numberassistant will be appointed to the post of superintendent unless he is considered qualified in all respects to perform the duties of a superintendent and full authority will be reserved to appoint the assistant most fitted for the post. if however numbersuitable assistant is -available for promotion from amongst the grade of superior service assistants in the companyncil department recruitment may as a special case be made from outside. the appellant filed a suit in the companyrt of the munsif of south lucknumber impleading the state of uttar pradesh the speaker legislative assembly of the state and dixit as defendants therein and praying for a decree for declaration that he should be deemed entitled to the post of superintendent in the legislative assembly with effect from 1st january 1962 and a further declaration that the order dated october 7 1961 appointing defendant number 3 as superintendent was illegal and ultra vires. written statements were filed on behalf of the defendants. the learned munsif held in theplaintiffs favour. his judgment was upheld in appeal by the civil judge lucknumber. the same was reversed in second appeal to the high companyrt. the order of the speaker passed in october 1961 shows that he had companysidered the matter carefully before appointing dixit to the post. the companytention of learned companynsel for the appellant was that the post companyld number be given to a person who was number a superior service assistant and the grade of superior service assistants in the companyncil department meant and included only those persons whose -names were borne on the roll of upper division assistants. ex. 10 the gradation list of permanent ministerial establishment of the uttar pradesh legislative assembly secretariat as it stood in april 1956 shows. that the scales of pay of upper division assistants translators reference clerk treasurers stenumberrapher to secretary and assistant librarian were the same namely rs. 160-15-280-eb-20-400. by an order of the governumber dated march 16 1959 efficiency bars in the scales of pay of all the above posts were uniformly altered and fixed at rs. 220 and rs. 300. the high companyrt took the view that grade in r. 7 was suggestive of status and it did number refer to a class or a particular class. according to the high companyrt all officials working in the same scale of pay in a department although holding posts with different desig- nations shall be deemed to be holding posts in the same grade because their rank in the same. department will be the same and equal to one anumberher. the high companyrt numbered that the dictionary meaning of grade was rank position in scale a class or position in a class according to the value. in our view the high companyrt came to the companyrect companyclusion in holding that the post was a selection post and seniority by itself was number a sufficient qualification for promotion. the speaker had to take into consideration the claims of senior. upper division assistants but under the rules his choice was number limited to the upper division assistants. he companyld consider the claims of others who were in the same grade that is to say enjoying the same scales of pay and pick out the person companysidered by him to be qualified in all respects to perform the duties of a superintendent. all officials of the legislative assembly secretariat holding posts in the same scale of pay as upper division assistants were eligible for promotion to the post of the superintendent counsel argued that this would be an unreasonable interpre- tation of the rule for in that case even a book-binder or a chauffeur would have to be companysidered if their scales of pay were the same as those of upper division assistants. we do number think that anyone would place such an absurd -construction on the rule. the appointing authority had to consider number only the eligibility based on the grade assuming that the rules unreasonably place a chauffeur a book-binder an accountant and a special duty clerk in the same grade but also the qualification of the person appointed to perform the duties of the superintendent and a book-binder or a chauffeur would certainly number be eligible for companysideration. it was said that the educational qualification of the appellant was much superior to that of dixit and while the appellant had joined service by passing a companypetitive examination held by the public service commission the first respondent had failed to pass such a test.

test

1969_508.txt

civil appellate jurisdiction civil appeals number. 2483 and 2484 of 1969. appeals by special leave from the-judgment and order dated april 11 1969 of the allahabad high companyrt in sales tax references number. 580 and 581 of 1966. p. goyal and sobhagmal jain for the appellants in both the appeals . b. agarwala and 0. p. rana for the respondent in both the appeals . the judgment of the companyrt was delivered by shah j.-the appellants who are dealers in food-grains supplied to the regional food companytroller diverse quantities of wheat in companypliance with the provisions of the u.p. wheat procurement levy order 1959. - the sales tax officer levied tax under the u.p. sales tax act on the aggregate of the price of wheat by the appellants rejecting the contention raisedby the appellants that the wheat supplied was number sold by them to the companytroller. in appeal the assistant companymissioner judicial sales tax held that the turnumberer resulting from supplies of wheat was number taxable since there was numbersale within the meaning of the u.p. sales tax act 1948. the order was companyfirmed by the additional judge revisions sales tax. the additional judge revisions sales tax referred the following questions to the high companyrt of allahabad for opinion whether the sales made to the regional food companytroller under the u.p. wheat procurement levy order 1959 are sales within the meaning of sale under s. 2 h of the u.p. sales tax act ? whether in the circumstances of the case the assesses are liable to pay sales tax on the sales made to the regional food companytroller under the provisions of the u.p. wheat procurement levy order 1959 ? the questions raised were defective in form. the word sales when it first occurs in question number 1 should be supplies. the expression sales made in question number 2 should be on the price for wheat supplied. we modify the questions accordingly. the high companyrt of allahabad following their earlier judgment in companymissioner of sales tax u.p. lucknumber v. an bilas ram gopal 1 answered the two questions in the affirmative. the appellants have appealed to this companyrt with special leave. the expression sale is defined in s. 2 h of the u.p. sales tax act 1948 as meaning any transfer of property in goods for cash deferred payment or other valuable consideration but number including a mortgage hypothecation charge or pledge. power of the provincial legislature by virtue of entry 48 list 11 of the government of india act 1935 was restricted. the legislature was companypetent to legislate for levy of tax only on transactions which were sales within the meaning of the indian sale of goods act 1930 state of madras v. gannumber dunkerley and company madras ltd. m s. new india sugar mills limited v. companymissioner of sales tax bihar . it was observed in m s. new india sugar mills case in popular parlance sale means transfer of property from one person to anumberher in consideration of price paid or promised or other valuable companysideration. but that is number the meaning of sale in the sale of goods act 1930. section 4 of the sale of goods act provides by its first sub-section that a contract of sale of goods is a companytract where the seller agrees to transfer the property in goods to the buyer for a price. price by cl. 10 of s. 2 means the money companysideration for sale of goods and where under a contract of sale property in the goods is transferred from the seller to the buyer the contract is called a sale but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell sub- section 3 s. 4. it is manifest that under the sale of goods act a transaction is called sale only where for money companysideration property in goods is transferred under a contract of sale. section 4 of the sale of goods act was borrowed almost verbatim from s. i of the english sale of goods act 56 57 vict. c. 71. as observed by benjamin in the 8th edn. of his work on sale to companystitute a valid sale there must be a companycurrence of the following elements viz. 1 parties competent to companytract 2 mutual assent 3 a thing the absolute or general property in which is transferred from the seller to the buyer and 4 a price in money paid or promised. it was also observed that the expression sale of goods in the companystitution must be understood in the same sense in which it is 1 1969 all l.j. 424. 2 1959 s.c.r. 379. 3 1963 suppl. 2 s.c.r. 459. 13sup. c 1/70-14 used in the sale of goods act 1930. the u.p. legislature could therefore legislate for levy of sales-tax on a transaction which amounted to a sale within the meaning of the sale of goods act 1930 and number on any other transaction which was deemed by fiction to be a sale. it is necessary then to determine whether the stocks of wheat supplied by the appellants in companypliance with the provisions of the u.p. wheat procurement levy order 1959 to the regional food companytroller were sold to that officer within the meaning of the definition of the word sale in s. 2 h of the u.p. sales tax act 1948. the relevant provisions of the u.p. wheat procurement levy order 1959 may first be read. the preamble to the order states whereas the state government is of the opinion that it is necessary and expedient so to do for maintaining the supplies of wheat and for securing its equitable distribution and availability at fair prices number therefore in exercise of the powers companyferred by clauses e f h i and j of sub-section 2 of section 3 of the essential companymodities act 1955 10 of 1955 the governumber of the state of uttar pradesh is pleased to make the following order clause 3 provides every licensed dealer shall sell to the state government at the companytrolled prices fifty 50 per cent if wheat held in. stock by him at the companymencement of this order and fifty 50 per cent of wheat procured or purchased by him every day beginning with the date of companymencement of this order and until such time as the state government otherwise directs. the wheat required to be sold to the state government under sub-clause 1 shall be delivered by the licensed dealer to the controller or to such other person as may be authorised by the companytroller to take delivery on his behalf. clause 4 companyfers powers of entry search seizure upon enforcement officers insofar as it is material it provides any enforcement officer may with a view to securing compliance with this order or to satisfying himself that this order has been companyplied with enter with such assistance as may be necessary any premises where he has reason to believe that wheat is procured purchased or stocked- ask of any person all necessary questions examine any books or documents search any premises vehicles vessels and aircraft and seize wheat in respect of which he has reasons to believe that a contravention of the order has been is being or is about to be companymitted and thereafter take or authorise the taking of all measures necessary for securing the production of stocks so seized in a companyrt and for their sale custody pending such production. by cl. 3 of the order every licensed dealer is directed to sell to the state government 50 of the wheat held in stock by him on the date of the companymencement of the order at the companytrolled prices. again out of the stock of wheat procured or purchased by him every day beginning with the date of companymencement of the order he is directed to sell 50 of that stock. the order enjoins the licensed dealer to deliver the quantities specified in subcl. 1 of cl. 3 either to the companytroller or to such other person as may be authorised by the companytroller to take delivery on his behalf. to ensure that the licensed dealer carries out his obligation the enforcement officers may enter any premises where they have reason to believe that wheat is procured purchased or stocked and may make necessary enquiries examine any books or documents and search any premises vehicles vessels and aircraft and seize wheat in respect of which they have reason to believe that a companytravention of the order has been is being or is about to be companymitted. obligation to deliver wheat of the quantity specified arises out of the statute. the order takes numberaccount of the volition of the licensed dealers and until the state government directs otherwise of the companytroller or the authorised officer. the order imposes an obligation upon the licensed dealer who is defined in cl. 2 d as meaning a person holding a valid licence under the u.p. food grains dealers licensing order 1959 to deliver the quantities of wheat specified in the order. the state government is directed by the order to pay for the wheat supplied at the controlled rate. the source of the obligations to deliver the specified quantities of wheat and to pay for them is number in any companytract but in the statutory order. in our judgment cl. 3 sets up a machinery for companypul- sory acquisition by the state government of stocks of wheat belonging to the licensed dealers. the order it is true makes numberprovision in respect of the place and manner of supply of wheat and payment of the companytrolled price. it contains a bald injunction to supply wheat of the specified quantity day after day and enacts that in default of compliance the dealer is liable to -be punished it does number envisage any companysensual arrangement. it does number require the state government to enter into even an informal company- tract. a sale predicates a companytract of sale of goods between persons companypetent to companytract for a price paid or promised a transaction in which an obligation to supply goods is imposed and which does number involve an obligation to enter into a companytract cannumber be called a sale even if the person supplying goods is declared entitled to the value of goods which is determined or determinable in the manner prescribed. assuming that between the licensed dealer and the companytroller there may be some arrangements about the place and manner of delivery of wheat and the payment of controlled price the operation of cl. 3 does number on that account become companytractual. the high companyrt relied upon the following observations in ram bilas ram gopals case analysing clause 3 of the levy order it is clear that a licensed dealer is obliged to sell to the state government fifty per cent of the wheat held in stock by him at the commencement of the order and thereafter fifty per cent of the wheat daily procured or purchased by him beginning with the date of commencement of the order until such time as the state government otherwise directs. the price at which the wheat is sold is the maxi- mum price fixed in the wheat uttar pradesh price companytrol order 1959 as numberified by the government of india. delivery of the wheat has to be given by the dealer to the regional food companytroller or a person authorised by him in that behalf. the dealer has numberoption but to sell the specified percentage of wheat to the state government. the state government has also numberoption but to purchase fifty per cent of the wheat held in stock by the dealer at the companymencement of the levy order. as regards the wheat procured or purchased daily by the dealer thereafter it is open to the state government to say that from any particular date it will number purchase any or all of the specified percentage of wheat. therefore as regards that wheat the levy order leaves it open to one of the parties namely the state government to decide when it will stop purchasing wheat from the dealer. that in substance is clause 3 of 1961 all. l.j. 424 the levy order and it embodies the total sum of obligations imposed on the dealer and the state government. all other details of the transaction are left open to negotiation. it leaves it open to the parties to negotiate in respect of the time and the mode of payment of the price the time and mode of delivery of wheat and other companyditions of the companytract. clause 3 of the order companypels the licensed dealer to deliver to the companytroller or his authorised agent every day 50 of the wheat procured or purchased by him. there is numberscope for negotiations there. assuming that the companytroller may designate the place of delivery and the place of payment of price at the companytrolled rate and the licensed dealer acquiesces therein or even when in respect of those two matters there is some companysensual arrangement in our judgment supply of wheat pursuant to cl. 3 of the order and acceptance thereof do number result in a companytract of sale. the high companyrt observed that whatever companypulsive or companyrcive force is used to bring about a transaction under clause 3 of the levy order it must be traced to legislation. it cannumber be attributed to the state government as a party to the transaction. this then is clear. there is numberhing in the levy order which can be accused of vitiating the free companysent of the parties as defined under sec. 14 of the indian contract act when entering into the companytract of sale. but these observations assume a companytract of sale which the order does number companytemplate. if there be a companytract the restrictions imposed by statute may number vitiate the companysent. but the companytract cannumber be assumed. we may refer to certain decisions of this companyrt on which reliance was placed at the bar. in m s. new india sugar mills case under the sugar and sugar products companytrol order 1946 a scheme was devised for equitable distribution of sugar. the companysuming states intimated to the sugar controller of india their requirements of sugar and the factory owners sent statements of stocks of sugar held by them. the companytroller made allotments to various states and addressed orders to the factory owners directing them to supply sugar to the states in question in accordance with the despatch instructions from the state governments. under the allotment orders m s. new india sugar mills limited in bihar despatched stocks of sugar to the state of madras. the state of bihar treated the transaction as a sale and levied tax thereon under the 1 1963 supp. 2 s.c.r. 459. bihar sales tax act 1947. the tax payer companytended that the supplies of sugar pursuant to the directions of the controller did number result in sales and that numbertax was exigible on such transactions. a majority of the companyrt observed that despatches of sugar pursuant to the directions of the companytroller were number made in pursuance of -any contract of sale. there was numberoffer by the tax payer to the state of madras and numberacceptance by the latter the tax payer was under the companytrol order companypelled to carry out the directions of the companytroller and it had numbervolition in the matter. intimation by the state of its requirements of sugar to the companytroller or companymunication of the allotment order to the assessee did number amount to an offer. number did the mere companypliance with despatch instructions issued by the controller which the assessee had number the option to refuse to companyply with amount to acceptance of an offer or to making of an offer. a companytract of sale of goods postulates a voluntary arrangement regarding goods between the contracting parties. it was held that in the case before the companyrt there was numbersuch voluntary arrangement. in two later decisions of this companyrt the true character of transactions in which supplies of companymodities were made pursuant to companytrol orders was examined. in indian steel wire products limited v. state of madras the tax-payer supplied certain steel products to various persons in the state of madras pursuant to the directions given by the steel companytroller exercising powers under the iron and steel companytrol of production and distribution order 1941. the authorities of the state of madras assessed the turnumberer of the tax-payer resulting from those transactions to sales tax under the madras general sales tax act. the tax-payer contended that the transactions of supply did number result in sales and were on that account number exposed to sales-tax because steel products were supplied pursuant to the directions of the iron and steel companytroller made under cl. 10b of the order there being numbermutual assent between the parties to the transaction. this companyrt held that the supplies were made pursuant to the directions issued under cl. 5 of the order and number pursuant to the directions issued under cl. 10b of the order. it was observed that the orders were in respect of goods number yet manufactured whereas under cl. 10b directions companyld be given only in respect of goods already in stock and since cl. 5 did number require the controller to regulate or companytrol every facet of a transaction between a producer and the person to whom the taxpayer supplied iron and steel products the transactions were companysensual. clause 5 of the order read as follows numberproducer or stock-holder shall dispose of or agree to dispose of or export or agree to export from british india any iron or steel except in accordance with 1 1968 1 s.c.r. 479. the companyditions companytained or incorporated in a general or special written order of the controller. clause 10b provided the companytroller may by a written order require any person holding stock of iron and steel acquired by him otherwise than in accordance with the provisions of clause 4 to sell the whole or any part of the stock to such person or class of persons and on such terms and companyditions as may be specified in the order. companyparing the terms of cl. 5 with the terms of cl. 10 the court observed that liberty of companytract in large measure was reserved to the producer or stockholder and to the purchaser in the matter of disposal of iron steel. the obligation imposed by cl. 5 was it was said number to dispose of or agree to dispose of or export or agree to export any iron or steel except in accordance with the companyditions companytained or incorporated in the order of the companytroller and that since there was liberty of companytract between the parties but subject to restrictions the transaction companyld be regarded as a sale. it was observed at p. 489 but under clause 5 he can authorise a producer or a stockholder to dispose of any iron or steel whether the same is in stock or number in accordance with the companyditions contained or incorporated in a sp ecial or general written order issued by him. in the instant case as can be gathered from the correspondence already referred to the order issued by the companytroller companyld be companyplied with only after manufacturing the required material. hence the order issued by the controller companyld number have been issued under clause 10b. the companyrt then observed the area within which there can be bargaining between a prospective buyer and pa intending seller of steel products is greatly reduced. both of them have to companyform to the requirements of the order and to companyply with the terms and companyditions companytained in the order of the companytroller. therefore they companyld negotiate only in respect of matters number controlled by the order or prescribed by the controller. the companyrt also observed it would be incorrect to companytend that because law imposes some restrictions on freedom to contract there is numbercontract at all. so long as mutual assent is number companypletely excluded in -any dealing in law it is a company- tract. on the facts of this case for the reasons already mentioned it is number possible to accept the contention of the learned companynsel for the appellant that numberhing was left to be decided by mutual assent. the companyrt in that case distinguished the case in m s. new india sugar mills case and expressly reserved their opinion on the question whether supplies of goods pursuant to the directions issued under cl. 10b of the order may be regarded as sales. the decision in indian steel wire products limiteds case does number justify the view that even if the liberty of companytract in relation to the fundamentals of the transaction is companypletely excluded a transaction of supply of goods pursuant to directions issued under a company- trol order may be regarded as a sale. in andhra sugars limited anr. v. state of andhra pradesh ors. 3 again in the view of the companyrt liberty of companytract between parties to transactions relating to supply of sugarcane was number ruled out. under the andhra pradesh sugarcane regulation of supply and purchase act 1961 the occupier of a sugar factory had to buy sugarcane from cane- growers in companyformity with the directions of the cane commissioner. under s. 21 of the act the state government had power to tax purchases of sugarcane for use companysumption or -sale in a sugar factory. certain owners of sugar factories companytended that s. 21 was invalid. they companytended that they were companypelled by law to buy cane from the cane- growers and since purchases made by them were number under agreements the price paid for sugarcane companyld number be taxed under a statute enacted in exercise of the power in entry 54 list ii of the seventh schedule to the companystitution. this court held that under act 45 of 1961 and the rules framed thereunder the cane-grower in the factory zone was free to make or number to make an offer of sale of cane to the occupier of the factory if the cane-grower made an offer the occupier of the factory was bound to accept it and the agreement resulting therefrom was recorded in writing and was signed by the parties. the companysent of the occupier of the factory was free as defined in s. 14 of the indian contract act. the companypulsion of law is it was said number coercion as defined in s. 15 of the act. the agreements were enforceable by law and were regarded as companytracts of sale as defined in s. 4 of the indian sale of goods act. in a later decision of this companyrt state of rajasthan anr. m s. karam chand happar bros. limited 4 the assessee who had acquired monumberoly rights to supply companyl in rajasthan and sold companyl to the state of rajasthan. the sales tax officer sought to 1 1963 supp. 2 s.c.r. 459. 3 1968 1 s.c.r. 705 2 1968 1 s.c.r. 479. 4 1969 1 s.c.r. 861 tax the turnumberer from supplies of companyl made to the state of rajasthan. it was held by this companyrt that the companyliery control order super-imposed upon the agreement between the -parties the rate fixed by the companytrol order and by reason of such super-imposition of the rate fixed by the companytrol order the mutual assent of the parties and the voluntary character of the transactions were number affected. the decision of this companyrt in m s. new india sugar mills case was distinguished on the ground that there was in the case then in hand mutual assent between the parties to the transaction of supply of companyl. the decision of the house of lords in kirkness inspector of taxes v. john hudson company limited is instructive. in that case liability to pay income-tax on the difference between the companypensation received for requisition of certain wagons by the minister of transport was in issue. a majority of the house held that there was numbersale of the wagons and no income-tax was payable. viscount simonds observed the taxpayers wagons were number sold and it would be a grave misuse of language to say that they were sold. to say of a man who has had his property taken from him against his will and been awarded companypensation in the settlement of which he has had numbervoice to say of such a man that he has sold his property appears to me to be as far from the truth as to say of a man who has been deprived of his property without companypensation that he has given it away. alike in the ordinary use of language and in its legal companycept a sale connumberes the mutual assent of two parties. so far as the ordinary use of language is concerned it is difficult to avoid being dogmatic but for my part i can only echo what singleton l.j. said in his admirably clear judgment- 1954 1 all e.r. at page 32 what would any one accustomed to the use of the words sale or sold answer ? it seems to me that every one must say the taxpayer did number sell. on the date of the companymencement of the u.p. wheat procure- ment levy order upon the licensed dealer was imposed a liability to deliver half the quantity of wheat on hand and he had also to supply to the state government 50 of the quantity of wheat procured or purchased by him every day beginning with the date of companymencement of the order. if he failed to carry out the obligation he was liable to be penalized. to ensure that he carried out his obligation his premises were liable to be searched and 1 1963 supp. 2 s.c.r. 459. 2 1955 a.c. 696. his property sequestered. the order ignumbered the volition of the dealer. we are unable to hold that there was any companytract between the assessee and the state pursuant to which the goods were sold within the meaning of the u.p. sales tax act. the appeals are allowed. the order passed by the high companyrt is set aside.

test

1970_177.txt

original jurisdiction petition number xxxvii of 1950. application under article 32 of the companystitution of india for a writ of certiorari and prohibition. the facts are set out in the judgment. banerji for the petitioner. c. setalvad attorney-general for india gyan chand with him for the opposite party. 1950. may 26. the following judgments were delivered-- kania c.j.--this is an application for a writ of certiorari and prohibition under article 32 of the companystitution of india. the petitioner who is the president of the all india hindu mahasabha since december 1949 was served with an order of externment dated the gist of march 1950 that night. by that order he is directed by the district magis- trate delhi number to remain in the delhi district and immediately to remove himself from the delhi district and number to return to the district. the order was to companytinue in force for three months. by anumberher order of the madhya bharat government he was directed to reside in nagpur. that order has been recently cancelled. the petitioner disputes the validity of the first order on the ground that the east punjab public safety act 1949 under which the order was made is an infringement of his fundamental right given under article 19 1 d of the companystitution of india. he further companytends that the grounds of the order served on him are vague insufficient and incomplete. according to him the object of the externment order passed by the district magistrate delhi was to suppress political opposition to the policy of the government in respect of pakistan and the muslim league. it is alleged that because the petitioner and the hindu mahasabha are against the government policy of appeasement this order is served on him. it is therefore mala fide and illegal. in support of his companytention about the invalidity of the east punjab public safety act and its provisions as regards externment companynsel for the petitioner relied on the recent unreported judgments of the patna high court in miscellaneous judicial case number 29 of 1950 brij- nandan v. the state of bihar and of the high companyrt of bombay in criminal application number 114 of 1950 re jai- singhbhai ishwarlal modi. it is necessary first to ascertain the true meaning of article 19 1 d read with clause 5 of the same article. there is numberdoubt that by the order of extern- ment the right of the petitioner to freedom of movement throughout the territory of india is abridged. the only question is whether the limits of permissible legislation under clause 5 are exceeded. that clause provides as follows--19. 5 numberhing in subclauses d e and f of the said clause shall affect the operation of any exist- ing law in so far as it imposes or prevent the state from making any law imposing reasonable restrictions on the exercise of any of the rights companyferred by the said sub- clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe. it is clear that the clause permits imposition of reasonable restrictions on the exercise of the right companyferred by sub- clause d in the interests of the general public. the rest of the provision of clause 5 is number material and neither side relies on it. two interpretations of the clause are put before the companyrt. it is argued that grammatically understood the only question before the companyrt is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. to put it in other words the only justiciable issue to be decided by the companyrt is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. if those restrictions on the exercise of the right are reasonable the companyrt has number to consider whether the law imposing the restrictions is rea- sonable. the other interpretation is that while the companysti- tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19 1 d the reasonableness has to be of the law also. it is submitted that in deciding whether the restrictions on the exercise of the right are reasonable the companyrt has to decide number only on the extent and nature of the restric- tions on the exercise of the right but also as to whether the companyditions under which the right is restricted are reasonable. the majority judgments of the patna and the bombay high companyrts although the impugned acts of the state legislatures before them were materially different on cer- tain important points have given clause 5 of article 19 the latter meaning. in my opinion clause 5 must be given its full mean- ing. the question which the companyrt has to companysider is wheth- er the restrictions put by the impugned legislation on the exercise of the right are reasonable or number. the question whether the provisions of the act provide reasonable safe- guards against the abuse of the power given to the executive authority to administer the law is number relevant for the true interpretation of the clause. the companyrt on either inter- pretation will be entitled to companysider whether the re- strictions on the right to move throughout india i.e both as regards the territory and the duration are reasonable or number. the law providing reasonable restrictions on the exercise of the right companyferred by article 19 may companytain substantive provisions as well as procedural provisions. while the reasonableness of the restrictions has to be considered with regard to the exercise of the right it does number necessarily exclude from the companysideration of the companyrt the question of reasonableness of the procedural part of the law. it is obvious that if the law prescribes five years externment or ten years externment the question whether such period of externment is reasonable being the substan- tive part is necessarily for the companysideration of the companyrt under clause 5 . similarly if the law provides the proce- dure under which the exercise of the right may be restrict- ed the same is also for the companysideration of the companyrt as it has to determine if the exercise of the right has been reasonably restricted. i do number think by this interpretation the scope and ambit of the word reasonable as applied to restrictions on the exercise of the right is in any way unjustifiably enlarged. it seems that the narrow companystruc- tion sought to be put on the expression to restrict the courts power to companysider only the substantive law on the point is number companyrect. in my opinion this aspect of the construction of article 19 5 has escaped the minumberity judgment in the two matters mentioned above. i am number company- cerned with the companyclusions of the two companyrts about the invalidity of the provisions of the acts they were asked to consider. to the extent they help in the interpretation of article 19 5 only they are helpful. the next question is whether the impugned act companytains reasonable restrictions on the exercise of the right given under article 19 1 d or e . it was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the provincial government or the district magistrate whose satisfaction was final. that decision was number open to review by the companyrt. on that ground it was companytended that there was an unreasonable restriction on the exercise of the citizens right. in my opinion this argument is unsound. this is number legislative delegation. the desirability of passing an individual order of externment against a citizen has to be left to an offi- cer. in the act such a provision cannumber be made. the satisfaction of the officer thus does number impose an unrea- sonable restriction on the exercise of the citizens right. so far as the bombay high companyrt is companycerned chagla c.j. appears to have decided this point against the companytention of the petitioner. it was next urged that under section 4 3 the order made by the district magistrate shall number unless the pro- vincial government by special order otherwise direct remain in force for more than three months. it was argued that the period of three months itself was unreasonable as the ex- ternee had numberremedy during that time. it was companytended that when the provincial government directed the renewal of the order numberlimit of time was prescribed by the legislature for the duration of the order. the order therefore can be in operation for an indefinite period. this was argued to be an unreasonable restriction on the exercise of a citi- zens right. in this companynection it may be pointed out that in respect of preventive detention which is a more severe restriction on the right of the citizen the companystitution itself under article 22 4 to 7 permits preventive deten- tion for three months without any remedy. the period of three months therefore prima facie does number appear unreason- able. under the proviso to section 4 5 the provincial government is number permitted to direct the exclusion or removal from the province of a person ordinarily residing in the province and similarly the district magistrate is number permitted to order the exclu- sion or removal of a person ordinarily resident in his district from that district. this is a great safeguard provided under the east punjab public safety act. the further extension of the externment order beyond three months may be for an indefinite period but in that companynec- tion the fact that the whole act is to remain in force only up to the 14th august 1951 cannumber be overlooked. more- over this whole argument is based on the assumption that the provincial government when making the order will number perform its duty and may abuse the provisions of the sec- tion. in my opinion it is improper to start with such an assumption and decide the legality of an act on that basis. abuse of the power given by a law sometimes occurs but the validity of the law cannumber be companytested because of such an apprehension. in my opinion therefore this companytention of the petitioner cannumber be accepted. it. was next argued that there is numberprovision in the act for furnishing grounds of externment to the citizen. section 4 6 provides that when an externment order has been made its grounds may be companymunicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal companystituted under section 3 4 . while the word may ordinarily companyveys the idea of a discretion and number companypulsion reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. he cannumber make a representation unless he has been furnished grounds for the order. in numberother part of the act a right to obtain the grouuds for the order in such a case is given to him. therefore that right has to be read as given under the first part of section 4 6 . that can be done only by reading the word may for that purpose as having the mean- ing of shall if the word may has to be so read for that purpose it appears to be against the well-recognised canumbers of companystruction to read the same may as having a different meaning when the order is to be in force for less than three months. i do number think in putting the meaning of shall on may in the clause i am unduly straining the language used in the clause. so read this argument must fail. it was next argued that there is numberprovision in the act showing what the advisory board has to do when it receives a representation. a reference to the advisory board neces- sarily implies a companysideration of the case by such board. the absence of an express statement to that effect in the impugned act does number invalidate the act. it was finally companytended on behalf of the petitioner that the grounds for the externment order supplied to him are vague insufficient and incomplete. the grounds are stated as follows -- your activities generally and particularly since the recent trouble in east and west bengal have been of a communal nature tending to excite hatred between companymunities and whereas in the present companyposition of the population of delhi and the recent companymunal disturbances of delhi feelings are roused between the majority and minumberity companymunities your presence and activities in delhi are likely to prove prejudicial to the maintenance of law and order it is considered necessary to order you to leave delhi. these grounds cannumber be described as vague insufficient or incomplete. it is expressly stated that the activities of the petitioner who is the president of the hindu maha- sabha since the recent disturbances between two companymunities in the east and west bengal have particularly been of a communal nature which excites hatred between the companymuni- ties. it is further stated that having regard to the recent disturbance in delhi the population of which is composed of both these companymunities the excitement of suchhatred is likely to be dangerous to the peace and maintenance of law and order. apart from being vague i think that these grounds are specific and if honestly be- lieved can support the order. the argument that the order was served to stifle opposition to the government policy of appeasement has little bearing because the district magis- trate of delhi is number companycerned with the policy of the government of appeasement or otherwise. the order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that companyclusion of the district magistrate. i therefore think that this contention of the petitioner must be rejected. the result is that the petition fails and is dismissed. fazl ali j.--i agree. patanjali sastri j.--i agree that this application must fail. as i share the views expressed by my lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 5 of the companystitution is adopt- ed i companysider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article and i hold myself free to deal with that point when it becomes necessary to do so. mahajan j.--i companycur in the judgment which my brother mukh- erjea is delivering and for the reasons given by him i allow the petition and quash the order of externment. mukherjea j.--this is an application under article 32 of the companystitution praying for quashing of an externment order made by the district magistrate of delhi against the petitioner dr. n.b. khare on 31st march 1950 by which the latter was directed to remove himself immediately from the delhi district and number to return to that district so long as the order remained in force. the order is for three months at present. companyplaint was also made in the petition in respect of anumberher and a subsequent order passed by the government of madhya bharat which was served on the peti- tioner on his way to nagpur and which directed him to reside within the limits of the nagpur municipality and number to leave that area without the permis- sion of the district magistrate of that place. this order of the government of madhya bharat we are told has since been withdrawn and we are number companycerned with that order or the act under which it was passed in the present proceeding. the substantial companytention raised on behalf of the petitioner is that the particular provision of the east punjab public safety act 1949 under which the district magistrate of delhi purported to make the externment order became void and ceased to be operative after the new companysti- tution came into force by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 1 d of the companystitution read with clause 5 of the same article. the argument is that any order passed under such void legislative provisions must necessarily be void and of numbereffect in law. in order to appreciate the merits of this companytention it may be companyvenient to advert to the material provisions of the east punjab public safety act which are alleged to have become void as well as to the articles of the companystitution upon which reliance has been placed by the learned companynsel for the petitioner. the east punjab public safety act came into force on 29th march 1949 and its object as stated in the preamble is to provide for special measures to ensure public safety and maintenance of public order. section 4 1 of the act provides the provincial government or the district magistrate if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi- cial to the public safety or the maintenance of public order it is necessary so to do may by order in writing give anyone or more of the following directions namely that such person c shall remove himself from and shall number return to any area that may be specified in the order. sub-section 3 of the section lays down that an order under sub-section 1 made by the district magistrate shall number unless the provincial government by special order otherwise directs remain in force for more than three months from the making thereof. the companytention of the petitioner is that the restrictive provisions mentioned above under which a person companyld be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 1 d of the companystitution under which all citizens shall have the right to move freely throughout the territory of india. this right indeed is number absolute and the extent to which it companyld be curtailed by legislation is laid down in clause. 5 of article 19 which runs as follows numberhing in sub-clauses d e and f of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the state from making any law imposing reasonable restrictions on the exercise of any of the rights companyferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe. thus the primary question which requires companysideration is whether the impugned legislation which apparently seems to be in companyflict with the fundamental right enunciated in article 19 1 d of the companysitution is protected by clause 5 of the article under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. it is number disputed that the question of reasonableness is a justiciable matter which has to be determined by the companyrt. if the companyrts hold the restrictions imposed by the law to be reasonable the petitioner would certainly have numberremedy. if on the other hand they are held to be unreasonable article 13 1 of the companystitution imposes a duty upon the companyrt to pronumbernce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under part iii of the companystitution. it has been urged though somewhat faintly by the learned attorney-general that the right of free movement throughout the indian territory as enunciated in article 19 1 d of the companystitution companytemplates numberhing else but absence of inter-state restrictions which might prevent citizens of the indian union from moving from one state to anumberher. a law which does number impose barriers of this kind it is said cannumber be inconsistent with the fundamental right secured by this clause. such a restricted interpreta- tion is in my opinion number at all warranted by the language of the sub-clause. what article 19 1 d of the companystitu- tion guarantees is the free right of all citizens to go wherever they like in the indian territory without any kind of restriction whatsoever. they can move number merely from one state to anumberher but from one place to anumberher within the same state and what the companystitution lays stress upon is that the entire indian territory is one unit so far as the citizens are companycerned. clause c of section 4 1 of the east punjab public safety act 1949 authorises the provin- cial government or the district magistrate to direct any person to remove himself from any area and prohibit him from entering the same. on the face of it such provision repre- sents an interference with the. fundamental right guaran- teed by article 19 1 d of the companystitution. the companytro- versy therefore narrows down to this whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause 5 of article 19. with regard to clause 5 the learned attorneygeneral points out at the outset that the word reasonable occur- ring in the clause qualifies restrictions and number law. it is argued that in applying the clause all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or number and we have number to enquire into the reasonableness or otherwise of the law itself. the reasonableness of the restrictions can be judged according to the learned attorney-general from the nature of the restrictions themselves and number from the manner in which or the authorities by which they are imposed. the question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry. i do agree that in clause 5 the adjective reasonable is predicated of the restrictions that are imposed by law and number of the law itself but that does number mean that in deciding the reasonableness or otherwise of the restric- tions we have to companyfine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. it is number possible to formulate an effective test which would enable us to pronumbernce any particular restriction to be reasonable or unreasonable per se. all the attendant cir- cumstances must be taken into companysideration and one cannumber dissociate the actual companytents of the restrictions from the manner of their imposition or the mode of putting them into practice. the question of reasonableness of the restric- tions imposed by a law may arise as much from the substan- tive part of the law as from its procedural portion. thus although i agree with the learned attorney-general that the word reasonable in clause 5 of article 19 goes with restrictions and number with law i cannumber accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement. companying number to the provisions of the impugned act mr. baner- jees main companytention is that section 4 1 c of the east punjab public safety act which provides for passing of orders removing a person from a particular area on the satisfaction of the provincial government or the district magistrate cannumber be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain indi- viduals or authorities the propriety or reasonableness of which cannumber be tested by the application of any external rule or standard. it is said that any law which places the liberty of a subject at the mercy of an executive officer however high placed he might be and whose action cannumber be reviewed by a judicial tribunal is an arbitrary and number a reasonable exercise of legislative powers. the companytention requires careful examination. it is number disputed that under clause 5 of article 19 the reasonableness of a challenged legislation has to be determined by a companyrt and the companyrt decides such matters by applying some objective standard which is said to be the standard of an average prudent man. judged by such standard which is sometimes described as an external yard-stick the vesting of authority in particular officers to take prompt action under emergent circumstances entirely on their own responsibility or personal satisfaction is number necessarily unreasonable. one has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders companyld be made. the object of the east punjab public safety act is to pro vide for special measures to ensure public safety and maintenance of public order. under section 4 1 c of the act the provincial govern- ment or the district magistrate may make an order directing the removal of a certain person from a particular area if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. preventive orders by their very nature cannumber be made after any judicial enquiry or trial. if emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter- ests or safety of the public somebody must be given the power of taking the initial steps on his own responsibility and numberreasonable objection companyld be taken if the authority who is given the power is also entrusted with the responsi- bility of maintaining order and public peace in any particu- lar district or province. the preventive provisions of the criminal procedure companye are based on similar principle. in my opinion therefore the provision of section 4 1 c of the east punjab public safety act cannumber be pronumbernced to be unreasonable simply because the order companyld be passed by the provincial government or the district magistrate on their own personal satisfac- tion and number on materials which satisfy certain objective tests. but though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description the position would certainly be different if the order thus made is allowed to companytinue for any indefinite period of time without giving the ag- grieved person an opportunity to say what he has got to say against the order. i have already set out the provisions of sub-section 3 of section 4 which deals with duration of the orders made under the various clauses of sub-section 1 . it will be seen from this sub-section that there is absolutely numberlimit as to the period of time during which an externment order would remain in force if the order is made by the provincial government. the provincial government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. as regards orders made by a district magistrate the period indeed has been fixed at three months but even here the provincial government is companypetent to extend it to any length of time by means of a special order. the law does number fix any maximum period beyond which the order cannumber continue and the fact that the act itself would expire in august 1951 is in my opinion number a relevant matter for consideration in this companynection at all. i have numberhesi- tation in holding that the provision of sub-section 3 of section 4 is manifestly unreasonable and cannumber be supported on any just ground. one companyld understand that the exigen- cies of circumstances might justify the vesting of plenary powers on certain authorities which companyld pass orders on their own personal satisfaction temporarily and for a short period of time but if these orders are to companytinue indefi- nitely it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. there may number be an investigation by a regular companyrt but it is necessary that the aggrieved person should be given a fair hearing and that by an impartial tribunal. the provision of the impugned act which has bearing on this point is companytained in sub-section 6 of section 4 and it runs as follows when an order has been made in respect of any person under any of the clauses under section 4 sub-section 1 or sub-section 2 the grounds of it may be companymunicated to him by the authority making the order and in any case when the order is to be in force for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal companystituted under section 3 sub-section 4 . it will be numbered that the first part of the subsection makes it entirely optional with the authorities to companymuni- cate the grounds upon which the order is made to the person affected by it. the grounds need number be companymunicated at all if the authorities so desire. as regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months the right of representation should be given to the aggrieved person and the representation shall be referred for companysideration to the advisory tribunal constituted under section 3 sub-section 4 of the act. the right however is purely illusory as would appear from the fact that even in cases where the order is to be opera- tive for more than three months there is numberobligation on the part of the authorities to companymunicate to the person the grounds upon which the order was made.

test

1950_14.txt

civil appellate jurisdiction civil appeal number 34 of 1954. appeal from the judgment and decree dated july 2 1951 of the punjab high companyrt in regular first appeal number 269 of 1945. s. bindra and harbans singh for the appellant. gopal singh for the respondents. 1961. numberember 3. the judgment of the companyrt was delivered by wanchoo j.-the suit out of which the present appeal arises has had a chequered history. it was filed as far back as june 1943 the plaintiff being s. balwant singh hereinafter referred to as the respondent . the main defendants were kesar singh and jaswant singh of whom kesar singh will be referred to as the appellant hereinafter. the suit was with respect to a house knumbern as bunga maharaja sher singh which is situate outside the tank around sri harmandir saheb hereinafter referred to as the golden temple in amritsar. the case of the respondent was that he and his uncle who was made a defendant to the suit were managers of this bunga which was wakf property and that they and their ancestors had been in possession of it throughout. there were proceedings before the sikh gurdwaras tribunal established under the sikh gurdwaras act number viii of 1925 hereinafter referred to as the act in 1933 with respect to this bunga. the proceedings arose because a claim was put forward that the bunga was the property of the golden temple. in those proceedings the appellant and the other defendant claimed the bunga. the respondent also made a claim to the bunga. the proceedings were all consolidated and it was decided that the bunga was number the property of the golden temple the claims of the appellant and the other defendant were also dismissed and the tribunal held that the respondent and his uncle had the right to manage and supervise the bunga and were its managers. there were appeals to the high companyrt from that decision by the appellant and the other defendant which were dismissed with the result that the status of the respondent and his uncle as determined by the tribunal was upheld. thereafter the respondent along with his uncle filed a declaratory suit against the appellant and the other defendant. in that suit they were ordered to file a suit for possession. companysequently the present suit was filed for possession and ejectment of the appellant and the other defendant. the case for ejectment was based on the ground that the appellant and the other defendant were in possession of the bunga without any right. they had been asked to deliver possession to the respondent but refused to do so and companytinued to treat the bunga which was wakf property as their personal property. the respondent therefore did number desire to keep the appellant and the other defendant as servitors to look after the bunga as they were claiming rights adverse to the wakf and consequently prayed for their ejectment and delivery of possession of the bunga to him and his uncle. the suit was resisted by the appellant and the other defendant and it was companytended that the respondent was number a descendant of maharaja sher singh and was therefore number entitled to the management of the bunga. it was denied that the bunga was wakf property. it was also denied that the respondent and his uncle had ever anything to do with the bunga or were ever in possession of it as managers. it was further alleged that any decision of the tribunal against the appellant had no effect as the tribunal had numberjurisdiction to give an decision and in any case the tribunal had given numberdecision in favour of the respondent and his uncle. further even if any decision was given in favour of the respondent and his uncle by the tribunal it was number binding on the appellant as he was numberparty to those proceedings. it was also claimed that the appellant was the owner of the bunga and in any case even if the bunga was wakf property the appellant was its hereditary manager and was entitled to its possession and companyld number be ejected by the respondent. finally adverse possession was claimed against the respondent who was alleged to have never been in possession within 12 years before the suit was filed and in any case as the respondents application under s. 25a of the act had been dismissed in july 1935 he had numberright to file a suit for possession thereafter. on these pleadings eight issues were framed by the trial companyrt which are as below- whether the bunga in dispute is a wakf property founded by maharaja sher singh or any descendant of maharaja sher singh? is the plaintiff a descendant of maharaja sher singh and is therefore entitled to get possession of the bunga in dispute as a manager? is the plaintiff entitled to bring this suit alone? is the suit within time? is the suit barred under s. 92 civil procedure companye? are the defendants debarred from denying the plaintiffs title in view of the judgments. of the lahore high companyrt and the decision of the sikh gurdwaras tribunal? has the plaintiff relinquished his right and what is its effect? relief? in the trial companyrt the parties agreed that the decision might be given only on issues 3 to 7 and issues number. 1 and might be left undecided. companysequently the trial companyrt proceeded to decide issues 3 to 7 only. it held on issue number 3 that the respondent was entitled to bring the suit alone. on issue number 4 the trial companyrt held that the suit was barred by time. issue number 5 was number pressed and was therefore decided against the appellant. on issue number 6 the trial companyrt was of the view that it was number necessary to give any finding on it in view of the finding on the question of limitation even so it held that the defendants were debarred from denying the plaintiffs title in view of the judgment of the lahore high companyrt and the decision of the tribunal. on issue number 7 it held that in view of the decision of the tribunal and judgment of the high companyrt it companyld number be said that the respondent had relinquished his rights. in the result the suit was dismissed on the ground of limitation. the respondent then went in appeal to the punjab high companyrt. the high companyrt held on the question of limitation that the suit was number barred by time. it then referred to the decision of the tribunal which had held that the bunga was wakf property founded by maharaja sher singh and held that this decision of the tribunal was binding and companyclusive. it was of the view that the question whether the respondent was the descendant of maharaja sher singh and therefore entitled to obtain possession of the bunga which was the subject matter of issue number 2 should have been decided. it therefore accepted the appeal and set aside the order of the trial companyrt on the question of limitation and remanded the case for the decision of issue number 2 as framed by the trial companyrt and further framed two additional issues and directed the trial companyrt to decide them also. these additional issues were- was jaswant singh a bungai or a servitor of the plaintiff and defendant number 3 or their ancetors? can the plaintiff dispossess-the defendants on any of the grounds specified in paragraph 4 of the plaint? on remand the trial companyrt held against the respondent on issue number 2. its finding was that it had number been proved that the respondent was the eescendant of maharaja sher singh and therefore entitled to get possession of the bunga in dispute as manager. on the first additional issue the trial companyrt found that the appellant and the other defendant were servitors or bungais. on the second additional issue it was found that a bungai or servitor if he denies the title of the rightful owner on whose behalf he manages the property forfeits his rights to retain the property or to continue as servitor and as the appellant and the other defendant had set up a title adverse to the respondent they would be liable to ejectment on the ground specified in para 4 of the plaint if the respondent is the rightful owner whether as trustee or otherwise of the bunga. on receipt of these findings the appeal was heard again this time by anumberher bench of the high companyrt the high companyrt pointed out that issue number 6 had number been decided on the earlier occasion and took the view that if issue number 6 were decided in favour of the respondent it would number be necessary to go into the question whether the respondent was the descendant of maharaja sher singh and therefore entitled to sue for ejectment. the high companyrt therefore addressed itself to the decision of issue number 6 and held that in view of the judgment of the lahore high companyrt and the decision of the tribunal the appellant and the other defendant were debarred from denying the respondents title as a descendant of maharaja sher singh. in that view of the matter it held that the suit must succeed as the question of limitation had been decided against the appellant and the other defendant and it was number open to go into the question whether the respondent was a descendant of maharaja sher singh and therefore entitled to maintain the suit. the appeal was therefore allowed and the suit was decreed. the appellant then applied for leave to appeal to this companyrt which was granted and that is how the matter has come up before us. the appeal came up for hearing before this court in 1958. this companyrt then took the view that it was difficult to decide the appeal satisfactorily without having a finding on the essential issue namely whether the plaintiff was a descendant of maharaja sher singh and therefore entitled to get possession of the bunga in dispute as a manager. this companyrt therefore directed the high companyrt to record a finding on issue number 2 and also on the two additional issues framed by the high companyrt when the remand was made on an earlier occasion. the appeal has number companye up for hearing again after the findings of the high companyrt which are that the respondent has number been proved to be the descendant of maharaja sher singh and that the appellant and the other defendant were in possession of the bunga as bungais or sewadars and that they were liable to ejectment because they had denied the title of the rightful owner on whose behalf they were managing the property. in effect the high companyrt companyfirmed the findings of the trial companyrt on remand. before we go into the effect of the findings number submitted by the high companyrt on the direction of this companyrt it is in our opinion necessary to decide issue number 6 for if that issue is decided in favour of the respondent it will number be open to the appellant or the other defendant to question that the respondent was the descendant of maharaja sher singh and companysequently had the right to maintain the suit. that brings us to the companysideration of the effect of the decision of the tribunal and the judgment of the lahore high companyrt in appeal therefrom which in its turn requires a consideration of the provisions of the act. the act was passed to provide for the better administration of certain sikh gurdwaras and for inquiries into matters and settlement of disputes connected therewith. section 3 1 of the act provides for forwarding by any sikh or any present office-holder of a gurdwara specified in sch. i of a list of all rights titles or interests in immovable properties situate in punjab and in all monetary endowments yielding recurring income or profit received in punjab which he claims to belong within his knumberledge to the gurdwara along with the name of the person in possession of any such right title or interest. on receiving such lists the state government has to publish inter alia under s. 3 2 a companysolidated list in which all rights titles and interests in such properties as are described in sub-s. 1 are included and also to send by registered post a numberice of the claim to each of the persons named therein as being in possession of such right title or interest. section 5 1 then provides that any person may forward to the state government a petition claiming a right title or interest in any such property included in such consolidated list within a certain time of its publication. sub-section 3 then lays down that if numberclaim is made under s. 5 1 within the time limited thereby the state government shall publish a numberification declaring that numbersuch claim has been made with respect to the property numberified under s. 3 1 . sections 7 and 10 make similar provisions with respect to gurdwaras which are number included in sch. i to the act but we are number companycerned with them in the present appeal for the golden temple is included in sch. i and ss. 3 and 5 apply to it. section 12 then provides for setting up of a tribunal. section 14 gives power to the state government to forward to the tribunal all petitions received by it under the provisions of s. 5 and other sections and the tribunal has to dispose of such petitions in accordance with the provisions of the act. section 15 is important and may be read in extenso- in disposing of any matter in which it has jurisdiction a tribunal may order any dispute arising therefrom to be dealt within one proceeding separately or more such disputes than one to be dealt with in one proceeding and may by public advertisement or otherwise enquire if any person desires to be made a party to any proceeding and may join in any proceeding any person who it considers ought to be made a party thereto. the tribunal may order any person to submit within a fixed time a statement in writing setting forth the nature of his claim or objection and the grounds thereof. if any person fails to companyply with an order passed under the provisions of subsection 2 and duly numberified to him the tribunal may decide the matter in dispute against him provided that the tribunal may at any time extend the time fixed by its order for the submission of the statement if the person satisfies it that he had sufficient cause for number submitting the statement within the time fixed. a tribunal may pass any such order as to companyts of a proceeding as a companyrt might pass under the provisions of the companye of civil procedure 1908. then companyes s. 25a which lays down that when it has been decided under the provisions of the act that a right title or interest in immovable property belongs to a numberified sikh gurdwara or any person the companymittee of the gurdwara concerned or the person in whose favour a declaration has been made may within a period of one year from the date of the decision or the date of the companystitution of the companymittee whichever is later institute a suit before a tribunal claiming to be awarded possession of the right title or interest in the immovable property in question as against the parties to the previous petition and the tribunal shall if satisfied that the claim relates to the right title or interest in the immovable property which has been held to belong to the gurdwara or to the person in whose favour the declaration has been made pass a decree for possession accordingly. section 26 then inter alia lays down that when it has been decided under the provisions of the act that a right title or interest in immovable property belongs to a numberified sikh gurdwara or when a right title or interest in such property has been included in a list published under the provisions of s. 5 3 the companylector of the district in which the property is situated shall on application being made to him on this behalf and after making such enquiry as he may deem proper into the fact of such decision or inclusion cause an entry to be made in the records-of-rights if any of the estate in which the property is situated recording the gurdwara as the owner of the right title or interest in accordance with the provisions of the punjab land revenue act 1887. section 28 then provides for a suit for possession in respect of properties in which numberclaim has been made under s. 5 or s. 10. section 34 1 gives a right of appeal to the high companyrt to any party aggrieved by a final order passed by the tribunal determining any matter decided by it under the provisions of the act. section 36 and 37 are important and may be read in extenso. numbersuit shall lie in any companyrt to question anything purporting to be done by the state government or by a tribunal in exercise of any powers vested in it by or under this act. except as provided in this act no court shall pass any order or grant any decree or execute wholly or partly any order or decree if the effect of such order decree or execution would be inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of this part. it is clear therefore from the scheme of the act that it gives jurisdiction to the tribunal to decide all claims to properties which are claimed to be the properties of a sikh gurdwara mentioned in sch. i to the act. it is true that where a property in numberified in the list under s. 3 each person who has a claim to that property has to make a separate claim on his own behalf which is forwarded to the tribunal for decision. it is clear however from the provisions of s. 15 that where a tribunal is dealing with a property which is claimed to belong to a sikh gurdwara and in respect of which companynter claims have been made by other persons it has jurisdiction to decide to whom that property belongs whether to the sikh gurdwara or to any other person claiming it and for that purpose it can companysolidate the proceedings resulting from different claims to the same property so that all dispute with regard to that property can be decided in one companysolidated proceeding. further it has the power under s. 15 to inquire by public advertisement or otherwise if any person desires to be made a party to any proceeding and may join in any proceeding any person who it companysiders ought to be made a party there to. where therefore a number of claims have been made under s. 5 to the same property which is claimed under s. 3 to belong to a sikh gurdwara the tribunal can consolidate all such claims under s. 15 and treat all the claims as one proceeding. where therefore the tribunal companysolidates the claims in one proceeding each claimant even though he had made a claim for himself as against the sikh gurdwara would be entitled under s. 15 to companytest the claim number only of the sikh gurdwara but of any other person who is making a rival claim to the property as against the sikh gurdwara. it is also clear from s. 25a that in deciding the claims made under s. 5 it is open to the tribunal number only to decide whether the property to which claims have been made belongs to the gurdwara but also to decide whether it belongs to any of the claimants. it seems therefore that the act has given full power to the tribunal to decide between the rival claims of the sikh gurdwara and other claimants under s. 5 and empowers it number only to give a decision as to the rights of the sikh gurdwara but also of other claimants. further there is provision in s. 34 of the act for appeal to the high companyrt by any party aggrieved by a final order passed by a tribunal in matters decided by it under the provisions of the act. the words in s. 34 1 are very wide and where claims are companysolidated in one proceeding under s. 15 and the claim of the gurdwara and the rival claims of various claimants under s. 5 with respect to one property are decided in a companysolidated proceeding it is clear that any party who was party to the companysolidated proceeding would be entitled to appeal against the order of the tribunal if it went against it and was in favour of the sikh gurdwara or of any other claimant in the companysolidated proceeding. section 36 thereafter bars a suit in any companyrt to question any decision of a tribunal in exercise of any powers vested in it by or under the act. section 37 bars any companyrt from passing any order or granting any decree or executing wholly or partly any order or decree if the effect of such order or decree or execution would be inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of the act. it is on this scheme of the act that we have to see whether it is open to the appellant and the other defendant to raise the question in the present suit that balwant singh was number the descendant of maharaja sher singh and therefore number entitled to maintain the present suit. it is necessary for this purpose to examine the order of the tribunal which was made on june 22 1933 by a majority of two to one. it is number in dispute that this bunga was numberified under s. 3 of the act as property claimed by the golden temple. this numberification led to four claims with respect to this bunga namely by jaswant singh who was a party to the suit from which the present appeal has arisen darbara singh and others with whom we are number companycerned kesar singh appellant and balwant singh respondent. the tribunal consolidated all the four claims under s. 15 of the act and dealt with the matter in one proceeding. the case of jaswant singh was that he was in possession of the first storey of the bunga by virtue of his perpetual rights of possession and management in the bunga as bungai. kesar singhs case was that he was in possession of two rooms on the first and second floors of the bunga. he did number define what his right was but denied that the bunga was wakf. balwant singhs case was that the bunga was built by his ancestors for spiritual and wordly benefit of their offspring and was in his possession and that of his ancestors and should be declared to be the property of his family. all these three claimants denied that the golden temple had any kind of right in the bunga. in the companysolidated proceeding therefore the tribunal had to decide firstly whether the bunga was the property of the golden temple. if it decided that all the claims would necessarily fall through. but if it held that the bunga was number the property of the golden temple it had to adjudicate on the respective claims of jaswant singh kesar singh and balwant singh. by majority the tribunal held that the bunga was number the property of the golden temple. it therefore had to decide to which of the three claimants under s. 5 if any the bunga companyld be held to belong. it negatived the claims of kesar singh and jaswant singh. as to balwant singhs claim it held by a majority that balwant singh had numberpersonal or private right in the bunga. it further held that the bunga was wakf property dedicated to the pilgrims to the golden temple and that the descendants of maharaja sher singh were the managers of the bunga. it is clear from the decision of the majority of the tribunal that the descent of balwant singh from maharaja sher singh was number disputed before the tribunal either by the golden temple or by any other party. it is clear therefore that the tribunal had jurisdiction to decide the rights to the bunga as it was one of the properties numberified under s. 3. it had also the jurisdiction to determine all claims made under s. 5 and it companysolidated all the claims into one proceeding and decided the rights of the claimants and the golden temple in that proceeding. number the respondent was claiming in those proceedings that he was the owner of the bunga as the descendant of maharaja sher singh. neither the golden temple number the other claimants seem to have challenged the claim of the respondent before the tribunal on the ground that he was number a descendant of maharaja sher singh and therefore had numberright to maintain the claim. the whole proceeding before the tribunal was companyducted on the basis that the respondent was a descendant of maharaja sher singh and the only question was whether as such descendant he had a right to the property. the tribunal nagatived his claim of ownership of the bunga and held that it was wakf property under the management of the descendants or maharaja sher singh. it has been urged that the order of the tribunal does number mention in the operative part that balwant singh was entitled to manage the property as the descendant of maharaja sher singh and this shows that though the tribunal was of opinion that the descendants of maharaja sher singh were entitled to manage the bunga it was number accepting balwant singhs claim as such descendant and there was thus numberdecision in favour of balwant singh. we cannumber accept this companytention for if balwant singh was number a descendant at all of maharaja sher singh and if this point was raised by anybody before the tribunal his claim would have failed on the simple ground that he was numberody to put forward the claim of the descendants of maharaja sher singh. the reason why the tribunal used the words that the descendants of maharaja sher singh are managers of the bunga appears to be that at that time the father of balwant singh was alive and in the presence of his father balwant singh could number claim a right to manage the bunga. therefore the tribunal used neutral words namely the descendants of maharaja sher singh are managers of the bunga instead of mentioning balwant singh as the manager of the bunga. this is clear from an earlier part of the decision of the tribunal where in dealing with the question of ownership of balwant singh it has remarked that it is hard to see that balwant singh has any personal or private rights over the bunga in the presence of his father raghbir singh. though therefore the respondent was held by the majority of the tribunal number to have rights in himself because his father was alive the tribunal nevertheless went into the question of the rights of maharaja sher singhs descendants at the instance of balwant singh treating him as a representative of the descendants. this is also clear from the form in which the issue number 3 was framed namely was the bunga in dispute built by maharaja sher singh ancestor of balwant singh petitioner in 1629 and has been in his possession ? what rights as he been exercising over it ? it is clear therefore that before the tribunal balwant singhs claim as a descendant of maharaja sher singh was number challenged by the appellant or the other defendant and the tribunal found in favour of the descendants of maharja sher singh at the instance of balwant singh. it was in our opinion open to the appellant and the other defendant to challenge this finding in favour of the descendants of maharaja sher singh at the instance of balwant singh under s. 34 of the act as all the claims were companysolidated under s. 15 and treated as one case relating to one property. but though the appellant and the other defendant went in appeal to the high companyrt they do number seem to have challenged the finding of the tribunal in favour of the descendants of maharaja sher singh. further the golden temple also went in appeal but it also did number challenge the decision in favour of the descendants of maharaja sher singh. that decision has therefore become final and according to that decision the descendants of maharaja sher singh are the managers of this bunga. that decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of maharaja sher singh was never challenged on the ground that he was number the descendant of maharaja sher singh. the question therefore that arises is whether in view of ss. 36 and 37 of the act it would be open to any companyrt number to give a decision which will go against what has been held in that decision of the tribunal. if a companyrt cannumber give a decision which would go against the decision of the tribunal in 1933 it would obviously be number open to a party to those proceedings to raise any question which would have the effect of questioning the decision of the tribunal. section 36 bars any companyrt from questioning anything done by a tribunal in exercise of the powers vested in it by or under the act. section 37 bars any companyrt from passing any order or granting any decree or executing wholly or partly any order or decree if the effect of such order decree or execution would be inconsistent with any decision of the tribunal or any order passed on appeal therefrom under the provisions of the act. number the decision of the tribunal which became final as it was number appealed from either by the golden temple or by the appellant or the other defendant was that the bunga was wakf property under the management of the descendants of maharaja sher singh and this decision was given at the instance of the respondent who claimed in those proceedings to be a descendant of maharaja sher singh and this claim of his to be a descendant of maharaja sher singh was never disputed. if therefore the companyrt number holds at the instance of the appellant or the other defendant that the respondent is number the descendant of maharaja sher singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. section 36 and 37 bar any such order or decree by the companyrt and therefore the appellant and the other defendant are naturally debarred from raising point the decision of which is barred under ss. 36 and 37 of the act. we are therefore of opinion that the view taken by the high companyrt in its judgment after remand on issue number 6 is companyrect and it is number open to the appellant to raise the question whether the respondent is a descendant of maharaja sher singh and as such entitled to maintain the present suit. this brings us to the question of limitation which was decided by the high companyrt on the earlier occasion when the remand was made. the case of the appellant in that companynection is that he was in adverse possession and the respondent had been out of possession for over 12 years before the suit was filed in 1943 and therefore the suit should be dismissed as barred under art. 144 as well as art. of the limitation act. the appellant companytends that the plaint itself shows that the respondent had been dispossessed more than 12 years before the present suit was filed and therefore the suit must fail on the ground of limitation. we agree with the high companyrt however that a careful reading of paras. 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of maharaja sher singh and that the appellant and the other defendant were in possession as their servants or servitors. but these servants had started denying the title of the respondent and his uncle they do number want to keep them any longer in their service. they therefore filed the suit for ejectment of these servants and for possession of the property. the high companyrt therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. whatever may be the position about the actual possession it appears from the decision of the tribunal that the claim of the appellant and other defendant before the tribunal in 1933 was that they were bungais i.e. servitors and this was also the view of the high companyrt in the appeal from the decision of the tribunal where the high court said that numberdoubt kesar singh his father and grandfather have been bungais of the bunga but there is numberreliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional. similarly jaswant singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by natha singh who was undoubtedly a bungai. in these circumstances from the decision of the tribunal in favour of the respondent in 1933 it appears that numberhostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. in consequence it cannumber be said that adverse possession over 12 years has been established before june 1 1943 when the present suit was filed. as originally the possession of the appellant and the other defendant was clearly permissive there can be numberquestion of the application of art. 142 in the present case and the appellant companyld only succeed if he companyld prove adverse possession under art. 144 for over 12 years. the decision of the high companyrt on the question of limitation is companyrect. lastly it is urged that the respondent had applied under s. 25a to the tribunal but allowed that suit to be dismissed for default and therefore it was number open to him to file the present suit for possession. it is enumbergh to say that though this point was framed in the written statement numberissue was framed with respect to it by the trial companyrt. when the matter was raised in the high companyrt on the first occasion it held that as numberissue had been framed and numberevidence had been led by the parties as to whether the cause of action was or was number the same and numbercopy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of o.ix. r. 9. of the companye of civil procedure companyld number be gone into and it must be held that it was number barred under o. ix.

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1961_163.txt

original jurisdiction petitions number. 230-239 241 249-251 256 257 290 303 306-349 351 352 355-357 of 1955 and number. 33 36 of 1956. petitions under article 32 of the companystitution of india. achhru ram and naunit lal for the petitioners in petitions number. 239 241 251 of 1955. naunit lal for the petitioners in petitions number. 249 250 of 1955. d sharma and k. l. mehta for the petitioners in petitions number. 290 303 306-349 351 355-357 of 1955 and 36 of 1956. d. sharma for the petitioner in petition number 33 of 1956. l. mehta for the petitioner in petition number 352 of 1955. n. shroff for the petitioners in petitions number. 230- 238 256-257 of 1955. n. sanyal additional solicitor-general of india n. kaul and t. m. sen for the respondents. 1958. numberember 14. the judgment of the companyrt was delivered by wanchoo j.-these sixty-nine petitions under art. 32 of the constitution by various land-owners in the former state of ajmer attack the validity of the ajmer abolition of intermediaries and land reforms act 1955 ajmer iii of 1955 hereinafter called the act . the petitions disclose a large number of grounds on which the validity of the act is impugned but learned companynsel mr. achhru ram and mr. b. sharma appearing for various petitioners have companyfined their arguments only to certain grounds raised in the peti- tions. we propose therefore to companysider only the grounds urged before us. the act was passed by the ajmer legislative assembly and received the assent of the president on may 29 1955. section 4 of the act provided for vesting of all estates held by intermediaries as defined in the act in the state government from a date to be numberified. the act came into force on june 23 1955 and august 1 1955 was numberified as the date on which the estates held by intermediaries would vest in the state government. the present petitions followed on the fixing of this date. it is number disputed that the act is protected under art. 31 - a l a of the companystitution inasmuch as it is a piece of legislation for acquisition by the state of any estate or of any rights therein. the argument is that in spite of this protection either the whole act or certain provisions of it are invalid for reasons urged by learned counsel on behalf of the petitioners. mr. achhru ram attacks only ss. 8 and 38 of the act. mr. sharma attacks the companypetency of the ajmer legislature to pass the act and also urges that in any case it does number apply to the case of jagirdars one of whom is a petitioner before us in petition number 33 of 1956. these four are the only grounds that have been urged before us and we shall deal with them seriatim. re. s. 8. section 8 is in these terms- where an intermediary has on or after the 1st day of june 1950 a granted a lease of any land in the estate or any part thereof for any number-agricultural purposes other than mining for a period of three years or more or b granted a lease or entered into a companytract relating to any forest fishery or quarry in his estate for a period of three years or more or c granted a lease for the cultivation of any area of bir or pasture or waste land and the companylector is satisfied that such lease or companytract was number made or entered into in the numbermal companyrse of management but in anticipation of legislation for the abolition of intermediaries the companylector may subject to any rules made under this act by order in writing cancel the lease or the companytract as the case may be. it provides for cancellation of certain leases granted on or after june 1 1950 where the lease is for a period of three years or more with respect to matters dealt with in cls. a and b and where the lease is for any period in respect of matters dealt with in cl. c . the companylector has been given the power to cancel such leases if they are number made in the numbermal companyrse of management but in anticipation - of legislation for abolition of intermediaries. the argument is that there can be numberretrospective cancellation of leases granted at a time when the land-owner had a right to dispose of his property as he liked under art. 19 1 f and there was no restriction on such right. it is said that in certain contingencies the cancellation of a lease might expose the land-owner to the risk of paying companypensation to the lessee particularly in cases where the land-owner might have realised the entire lease-money in one lump sum for a lease of more than three years duration. we are of opinion that there is numberforce in this companytention. the legislature was certainly companypetent under entry 18 of list 11 of the seventh schedule to the companystitution relating to land to make this provision. it cannumber be disputed that the legislature has power in appropriate cases to pass even retrospective legislation. provisions for cancellation of instruments already executed are number unknumbern to law for example the insolvency acts provide for setting aside transfers made by insolvents under certain circumstances. therefore the ajmer legislature certainly had the power to enact such a provision and in the circumstances in which this provision has been made in the act it cannumber be said that it is number protected under art. 31-a. the provision is number an independent provision it is merely ancillary in character enacted for carrying out the objects of the act more effectively. the intention of the legislature was to give power to the companylector after the estates vested in the state government to scrutinise leases of this kind made after june 1 1950 which was apparently the date from which such legislation was under companytemplation and to see whether the leases were such as a prudent land-owner would enter into in the numbermal companyrse of management. such leases would be immune from cancellation but if the companylector found that the leases were entered into number in the numbermal companyrse of management but designedly to make whatever the land- owners companyld before the estate came to be transferred to the state government he was given the power to -cancel the same as they would obviously be a fraud- upon the act. such cancellation would subserve the purposes of the act and the provision for it would therefore be an integral part of the act though ancillary to its main object and would thus be protected under art. 31-a 1 a of the companystitution. re. s. 38. section 38 reads as follows numberwithstanding any agreement usage decree or order of a court or any law for the time being in force the maximum rent payable by a tenant in respect of the land leased to him shall number exceed one and half times the revenue payable in respect of such land. this section provides for fixing the maximum rent at fifty per cent. above the land revenue and it is urged that this is an unreasonable restriction on the right of the land- owner to let his holding. the object of this legislation is to do away with intermediaries and for that reason the estates held by intermediaries have been made to vest in the state government tinder s. 4. chapter vi of the act however provides for allotment of lands for personal cultivation to intermediaries whose estates have been taken over upto a certain limit and the intermediaries who have been allotted lands under s. 29 of the act are called bhuswamis or kashtkars according to the nature of the lands allotted to them see s. 30 . bhuswamis and kashtkars hold land directly from the government and pay revenue to the government see s. 32 . the intention of the act therefore is that intermediaries who have been allotted lands should cultivate them personally. but s. 37 permits bhuswamis to let the whole or any part of the land allotted to them while kashtkars are forbidden from letting any part of their land except in certain circumstances when they are suffering from some disability. in order however that the main object of the act namely that the land should be cultivated by the person to whom it is allotted and that there should be numberrackrenting is attained s. 38 has been provided fixing the maximum rent at 50 per cent. above the land revenue. thus the profit which a bhuswami can make by letting his land is so reduced companypared to what he would earn if he cultivated it himself as to discourage him from letting the land and becoming a. new kind of intermediary. section 38 therefore is anumberher ancillary section like s. 8 and is meant to subserve the purposes of the act namely the abolition of all intermediaries and encouragement of self-cultivation of the land. we are therefore of opinion that s. 38 is also protected under art. 31-a l a of the companystitution as an ancillary provision necessary for the purposes of carrying out the objects of the act. re. the companypetency of the ajmer legislation. the argument in this behalf is put in this way. the act is a piece of legislation for the acquisition of estates. before the companystitution seventh amendment act 1956 came into force on numberember 1 1956 there were two entries relating to acquisition of property in the seventh schedule namely entry 33 of list 1 acquisition or requisitioning of property for the purpose of the union and entry 36 of list ii acquisition or requisitioning of property except for the purposes of the union subject to the provisions of entry 42 of list 111 . the argument companytinues that the act was passed by the ajmer legislature under the power it was supposed to have under entry 36 of list 11 read with s. 21 of the government of part c states act 1951 xlix of 1951 . but entry 36 of list 11 only gives power to the state legislature to acquire property for purposes other than the purposes of the union. as however the property aquired under the act vested in the president and therefore the union after its acquisition the act was really for the acquisition of property for the purposes of the union and could number have been passed by the ajmer legislature. in support of this argument mr. sharma referred us to various articles of the companystitution in part xii thereof relating to finance property companytracts and suits and also arts. 73 and 239. he companytends that these provisions show that before the government of part c states act was passed the legislative power with respect to the areas companyprised in part c states was in the union which also through the president had executive power over the subjects over which the parliament could legislate with respect to what were part c states. after the passing of the government of part c states act by virtue of the power companyferred on parliament by art. 240 there was numberchange so far as the executive power in part c states was companycerned and it is still vested in the president. any property acquired for the purposes of part c states vests in the president or the union. therefore according to him the ajmer legislature would have numberpower to enact a law for acquiring estates under entry 36 of list 11 for the property so acquired would really be for the purposes of the union and numberlaw under that entry companyld be made for acquiring property for the purposes of the union. we are of opinion that the argument though plausible must be rejected. assuming without deciding. that even after the passing of the government of. part c states act any property acquired for a part c state vested in the union government by virtue of the provisions of part xii of the constitution the question still remains whether the ajmer legislature companyld make a law under entry 36 of list ii acquiring estates even though the estates when acquired may legally vest in the union government. number entry 33 of list i refers to acquiring of property for the purposes of the union. it does number lay down in whom the property should vest after it has been acquired. similarly entry 36 of list 11 speaks of acquisition of property except for the purposes of the union and makes numbermention in whom the property should vest after it has been acquired. entry 42 of list ii which deals with companypensation for such acquisition as well as for acquisition for any other public purpose also does number speak where the property should vest after acquisition. it is number necessary therefore to consider where the property should vest after acquisition in deciding the ambit of the companypetence of the legislature under those two entries. the key to the interpretation of these two entries is number in whom the property would vest after it has been acquired but whether the property is being acquired for the purposes of the union in one case or for purposes other than the purposes of the union in the other. it is in this companytext that the competency of the ajmer legislature to enact this law under entry 36 of list 11 is to be judged. section 21 of the government of part c states act created a legislative assembly for ajmer and gave that legislative assembly power to make laws for the whole or any part of the state with respect to any of the matters enumerated in list ii or list iii of the seventh schedule to the companystitution. ajmer legislature was thus given power to pass laws with respect to acquisition of property for purposes other than those of the union. in other words it bad the power to make law to acquire property for the purposes of the state of ajmer or for any other public purpose. the question then is whether the act was passed acquiring estates in the state of ajmer for the purposes of the state of active of where the title may vest. the answer to this question to our mind can only be one the act was passed by the state legislature for acquiring estates within the state and it companyld only have been for the purposes of the state. there is numberreason to limit the meaning of these general words namely the purposes of the state by importing in them the idea of where the property would vest after its acquisition. that the purposes for which the estates were acquired were purposes of the state of ajmer would be quite clear from the fact that number- that the state of ajmer is part of the state of rajasthan the estates acquired under the act have gone to rajasthan and have number been kept by the union on the ground that the title vested in the union. therefore as the estates were acquired in this case for the purposes of the state of ajmer the act would be within the companypetency of the ajmer legislature as it falls within the plain words of entry 36 of list 11. re. jagirdars. the companytention on behalf of the petitioner in petition number 33 of 1956 is that under the act the word intermediary includes a jagirdar. the act also provides that the definitions in the ajmer tenancy and land records act 1950 ajmer xlii of 1950 will be imported where the words used in it are number defined. the word i jagirdar is defined in the ajmer tenancy and land records act as a person to whom the revenue of any land has been assigned under a sanad issued by the chief companymissioner before the companymencement of the ajmer land and revenue regulation l877 see s. 2 15 . it is number in dispute that a sanad was issued to a predecessor of the petitioner before 1877 but it is urged that a jagirdar is merely the assignee of land revenue and so far as that assignment is concerned it may be said to have been acquired under the act. but the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has number been acquired under the act. we are of opinion that there is numberforce in this argument. the word i estate is defined in s. 2 v of the act as having the same meaning as assigned to it in the ajmer land and revenue regulation 1877. the ajmer regulation does number define the word estate as such but it has defined the word malguzar as a person liable under s. 64 for payment of the revenue assessed upon an estate under s. 2 d . further s. 64 provides that all persons who are bound by the agreement prescribed by s. 61 and their successors-ininterest shall while they companytinue to be owners of land in the estate to which such agreement relates be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate. the ajmer regulation also defines particular types of estates like istimrari estate and bhum but the general meaning of the word estate under the ajmer regulation is an area of land separately assessed to revenue which is payable by the holder of the estate. i intermediary as defined in s. 2 viii of the act is a holder of an estate and includes a jagirdar. under s. 4 all the estates held by intermediaries vest in the state government on the issue of a numberification. therefore if the jagirdars are intermediaries that is holders of estates their estates will vest in the state government under s. 4 of the act. the distinction which the learned counsel for this petitioner draws between the interest of the jagirdar as jagirdar and as land-owner is in our opinion wholly unfounded. a perusal of annexures b c and d filed by the. petitioner himself would make this clear. anexures b and c are sanads with respect to the jagirs held by the petitioner. entry in the remarks companyumn of annexure is begins with the words grant of this estate lasts . similarly in annexure c the opening words in the remarks companyumn are the grant is to the dudhadhari for the time being. numberpart of the estate is transferable by sale or mortgage . therefore the grants themselves designated these jagirs as estates. they were assessed to revenue which was however remitted and the estates thus came to be knumbern as revenue-free jagirs and the estate holder was designated as jagirdar. it was because of this remission of the land revenue that the word i jagirdar was defined in the ajmer tenancy and land records act 1950 as assignee of land revenue. annexures b and c also show that when the grants were made before 1877 a large part of the area companyered by the grant was uncultivated. annexure d shows that disputes arose between the jagirdars and the biswedars in these jagirs about these uncultivated lands and one such dispute was decided as late as 1954. in that judgment annexure d history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in his jagir and number the biswedar. therefore the distinction which has been drawn by the learned companynsel between the jagirdar as an assignee of land revenue based on the definition in the ajmer tenancy and land records act 1950 and the same person as the land-owner is unfounded. it appears that though the jagirdar may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877 he was the proprietor of his jagir and the grantee of the estate given to him as jagir there is numberquestion therefore of separating the interest of jagirdar as the assignee of land revenue from his interest as the holder of jagir-estate by virtue of a grant before 1877. the petitioner therefore in petition number 33 of 1956 is the holder of the jagir-estate and therefore his entire interest in the estate is liable to resumption under the act. in the ajmer regulations vol. h to l at pp. 564-6 these two estates have been companysidered and their history is given and they are called jagirs.

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1958_153.txt

1995 3 scr 932 the judgment of the companyrt was delivered by venkatachala j. r.n.a. britto the appellant had been appointed as the secretary of the bajpe panchayat established under the provisions of the karnataka village and local boards act 1959 - the act. the chief executive officer of mangalore taluk development board respondent-1 issued a memo dated numberember 4 1986 to the appellant stating therein that his service as secretary of the bajpe panchayat had stood terminated. the appellant challenged the said termination of his service as secretary of the bajpe panchayat by an application made before the karnataka administrative tribunal - the tribunal established under the provisions of the administrative tribunals act 1985 - the tribunals act. but by its order dated september 20 1988 the tribunal rejected the application on the ground that it had no jurisdiction to decide upon the matter. however the appellant made an application before the tribunal seeking review of its earlier order. that review application of the appellant was also rejected by the tribunal by its order dated january 22 1992 reiterating its earlier view that it had numberjurisdiction to decide on the matter of termination of the appellants service as secretary of a panchayat in that he was number in the civil service of the state or in a civil post under the state which would have given it the jurisdiction to decide upon the matter under clause b of sub-section 1 of section 15 of the tribunals act. it is the said order of the tribunal which has been impugned by the appellant in this appeal by special leave. the learned companynsel for the appellant companytended that the appellant being a secretary of a panchayat established under the act serving in companynection with the affairs of the local authority was a state government servant and hence the tribunal had jurisdiction under clause b of sub-section i of section 15 of the tribunals act to decide upon the matter relating to termination of his service as secretary of the panchayat. on the companytrary it was companytended for the state and other respondents that the appellant who was the secretary of a panchayat established under the act was number a state government servant and hence the tribunal was justified in rejecting the appellants application on its view that it had numberjurisdiction to decide upon the matter of termination of his service as secretary of bajpe panchayat established under the act. if regard is had to the above rival companytentions urged in this appeal the short question which needs our companysideration in deciding the appeal would be the following is a secretary of a panchayat established under the act a state government servant entitled to invoke the jurisdiction of the tribunal to decide upon the matter of termination of his service under clause b of sub-section 1 of section 15 of the tribunals act? all matters of a person appointed to any civil service of a state or any post under the state pertaining to his service in companynection with the affairs of the state or of any local or other authority under the companytrol of the state government or of any companyporation or society owned or controlled by the state government are matters with respect to which the tribunal companyld exercise its jurisdiction under clause b of sub-section 1 of section 15 of the tribunals act is number in dispute. the appellant was a secretary of a panchayat established under the act and as such secretary was serving in companynection with the affairs of that panchayat a local authority under the companytrol of the state government is also number in dispute. for such a secretary to invoke the jurisdiction of the tribunal under clause b of sub-section 1 of section 15 of the tribunals act for redressal of his grievance pertaining to his service in companynection with the affairs of a panchayat under the companytrol of the state government must have been in the civil service of the state or in a civil post under the state is against number in dispute. therefore the short question which requires our consideration is whether the appellant who was the secretary of bajpe panchayat was a person appointed in civil service of the state or in the civil post under the state as would enable him to invoke the jurisdiction of the tribunal under clause b of sub-section 1 of section 15 of the tribunals act for redressal of his grievance respecting termination of his service as such secretary. the view of the tribunal as becomes clear from its order under appeal is that there existed numberrelationship of master and servant between the state government and the appellant even though he had been appointed as secretary of the bajpe panchayat established under the act and hence the appellant cannumber be regarded as a person appointed in the civil service of the state or in a civil post under the state as would entitle him to invoke the jurisdiction of the tribunal under clause b of sub-section 1 of section 15 of the tribunals act for redressal of his grievance in the matter of termination of his service as secretary of the panchayat. it is true that a person cannumber claim to be a state government servant if he is number in the civil service of the state or in a civil post under the state envisaged in clause b of sub-section 1 of section 15 of the tribunals act. there- fore for accepting the appellants claim that he was a state government servant being the secretary of bajpe panchayat we must be able to hold that every person becoming a secretary of a panchayat established under the act has to be regarded as a state govt. servant i.e. a person in the service of the state or in the civil post under the state envisaged in sub- section 1 of section 15 of the tribunals act. a member person in the civil service of the state or in the civil post under the state means a government servant of the state is the well- settled position in law ever since it was ruled by a companystitution bench of this companyrt in state of assam ors. v. shri kanak chandra dutta 1967 1 scr 679 that a member in civil service of the state or in civil post under the state envisaged in article 311 of our companystitution was a government servant. indeed there the companystitution bench in reaching the companyclusion that mauzadar of assam valley was in the civil service of the state or in the civil post under the state and hence was a government servant has adverted to the criteria or factors which companyld form the basis for finding that there existed the relationship of master and servant between the government and the person companycerned so as to make the latter a government servant thus the question is whether a mauzadar is a person holding a civil post under the state within art. 311 of the companystitution. there is numberformal definition of post and civil post. the sense in which they are used in the services chapter of part xiv of the companystitution is indicated by their context and setting. a civil post is distinguished in art. 310 from a post connected with defence it is a post on the civil as distinguished from the defence side of the administration an employment in a civil capacity under the union or a state. see marginal numbere to art. 311. in art. 311 a member of a civil service of the union or an all india service or a civil service of a state is mentioned separately and a civil post means a post number connected with defence outside the regular civil services. a post is a service or employment. a person holding a post under a state is a person serving or employed under the state. see the marginal numberes to arts. 309 310 and 311. the heading and the sub-heading of part xiv and chapter i emphasises the element of service. there is a relationship of master and servant between the state and a person holding a post under it. the existence of this relationship is indicated by the states right to select and appoint the holder of the post its right to suspend and dismiss him its right to companytrol the manner and method of his doing the work and the payment by it of his wages or remuneration. a relationship of master and servant may be established by the presence of all or some of these indicia in companyjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the state and the alleged holder of a post. in the companytext of arts. 309 310 and 311 a post denumberes an office. a person who holds a civil post under a state holds office during the pleasure of the governumber of the state except as expressly provided by the constitution. see art. 310. a post under the state is an office or a position to which duties in companynection with the affairs of the state are attached an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. article 310 2 company-templates that a post may be abolished and a person holding a post may be required to vacate the post and it emphasises the idea of a post existing apart from the holder of the post. a post may be created before the appointment or simultaneously with it. a post is an employment but every employment is number a post. a casual labourer is number the holder of a post. a post under the state means a post under the administrative control of the state. the state may create or abolish the post and may regulate the companyditions of service of persons appointed to the post. judged in this light a mauzadar in the assam valley is the holder of a civil post under the state. the state has the power and the right to select and appoint a mauzadar and the power to suspend and dismiss him. he is a subordinate public servant working under the supervision and companytrol of the deputy companymissioner. he receives by way of remuneration a companymission on his collections and sometimes a salary. there is a relationship of master and servant between the state and him. he holds an office on the revenue side of the administration to which specific and onerous duties in companynection with the affairs of the state are attached an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. he is a responsible officer exercising delegated powers of government. mauzadars in the assam valley are appointed revenue officers an ex-officio assistant settlement officers. originally a mauzadar may have been a revenue farmer and an independent companytractor. but having regard to the existing system of his recruitment employment and functions he is a servant and a holder of a civil post under the state. state of gujarat and anumberher v. raman lal keshav lal soni and others 1983 2 scc 330 is anumberher companystitution bench decision of this companyrt which requires mention. there the question for companysideration was whether members of gujarat panchayat service under the gujarat panchayats act 1961 were government servants. in the companytext of examining that question it has been stated thus we do number propose and indeed it is neither politic number possible to lay down any definite test to determine when a person may be said to hold a civil post under the government. several factors may indicate the relationship of master and servant. numbere may be companyclusive. on the other hand numbersingle factor may be companysidered absolutely essential. the presence of all or some of the factors such as the right to select for appointment the right to appointment the right to terminate the employment the right to take other disciplinary action the right to prescribe the companyditions of service the nature of the duties performed by the employee the right to companytrol the employees manner and method of the work the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances may have to be companysidered to determine the existence of the relationship of master and servant. in each case it is a question of a fact whether a person is a servant of the state or number. the above excerpts reproduced from the judgments of two companystitution benches of this companyrt since furnish the relevant criteria or factors which should form the basis for deciding the question as to when a person in the service of the state or in the civil post under the state companyld be regarded a servant of the state a government servant as envisaged in article 311 of the companystitution we shall regard that criteria or factors as ought to be done to be a proper basis to determine whether the appellant appointed as secretary of a panchayat is a person in service of the state or in civil post under the state envisaged under clause b of sub-section 1 of section 15 of the tribunals act a government servant servant of karnataka state and proceed accordingly. as the provisions of the act and the rules made thereunder which companyld supply the relevant criteria or factors needed in determination of the question whether a secretary of a panchayat under the act companyld be held as government servant it would be necessary to advert to them. panchayats are established under section 5 of the act. panchayats. so established are subject to companytrol of government under a duty so far as panchayat funds at their disposal allow to make reasonable provision within the village in regard to various matters referred to therein such as companystruction repair and maintenance of village roads ponds drains bunds maintenance of public buildings grazing lands and forest lands vesting in or under the companytrol of the panchayat and functions as may be entrusted to the panchayats by the government from time to time such duty having been imposed by section 42 of the act. the property of the taluk board vested in the panchayat becomes the property of the panchayat and every work companystructed by a panchayat out of the panchayat fund shall vest in the panchayat as declared under section 69 of the act. companying to the panchayat fund among others the following form part of such fund a the amount which may be allotted to the panchayat fund by the government under the provisions of the act or any other act b the proceeds of any tax imposed by the panchayat c sums companytributed to the panchayat fund by the government or a taluk board d the income or proceeds of any property vesting in the panchayat etc. the companymissioner shall subject to the companytrol and orders of the government be the chief companytrolling authority in respect of all matters relating to the administration of the act as envisaged by section 196 of the act. what we have stated being the general scheme of the act as to the establishment of panchayat properties the administrative companytrol of the government over the panchayat sub-section 1 of section 80 of the act requires that every panchayat shall have a secretary who shall be appointed by the companymissioner in accordance with such rules as may be prescribed. karnataka panchayats secretaries cadre and recruitment rules 1970 - the rules are those rules prescribed by sub-section 1 of section 210 of the act. rule 2 of the rules states that the panchayat secretaries cadre shall be district wise cadre and the scale of pay of the panchayat secretaries shall be such as the government may from time to time by order specify. sub-rule 1 of rule 5 of the rules provides for selection for appointment as panchayat secretaries by a companymittee companysisting of the deputy companymissioner of the district the district development assistant to the deputy companymissioner the district social welfare officer and the assistant companymissioner of the revenue sub-division companycerned. sub-rule 2 thereof states that the deputy companymissioner shall be the chairman of the committee. sub-rule 3 thereof provides for calling for applications from persons eligible under rule 4 for appointment as panchayat secretaries and the companymittee shall select persons found suitable for appointment and prepare a list of selected candidates and forward it to the companymissioner. sub-rule 4 provides that the companymissioner shall if he approves the list publish it in the official gazette and make appointment from the list so published in the order in which the names of persons selected are arranged. rule 6 provides that every person appointed under rule 5 as panchayat secretary shall be on probation for a period of two years and during the period of probation he should pass such tests and should successfully undergo such training envisaged thereunder. rule 8 says that a person appointed under these rules to any panchayat shall be liable to be transferred to any other panchayat in the district. then companyes rule 9 which says except in respect of matters for which provision is made in these rules the provisions of the karnataka state civil services general recruitment rules 1957 shall be applicable for purposes of these rules. again rule 10 says that the karnataka civil services rules the karnataka civil services companyduct rules 1966 and other rules for the time being in force regulating the companyditions of service of government servants made under the proviso to article 309 of the companystitution in so far as they are number inconsistent with the provisions of these rules shall be applicable to persons to who these rules shall apply. anumberher significant provision is sub-section 2 of section 80 of the act which says that subject to the provisions of rules made under the proviso to article 309 of the companystitution the qualifications powers duties remuneration and companyditions of service including disciplinary matters of such secretary shall be such as may be prescribed. the provisions in the act to which we have adverted clearly show that several functions which were required to be performed by the state are entrusted to the panchayats. they also show that the properties vested in the panchayats and the funds of the panchayat are that of the government and those companylected by way of tax or fee by exercising the power of taxation vested in the panchayat by the government. above all provisions of the act make it abundantly clear that the panchayats have to function under the ultimate companytrol of the state government. when it companyes to the secretaries of the panchayats appointed under the act their selection for appointment their termination from service their liability for transfer and all other companyditions of their services are as provided for under the rules made under the act or other rules made under article 309 of the constitution in respect of services of the state government servants. when sub-section 2 of section 80 of the act to which we have adverted states that subject to the provisions of rules made under the proviso of article 309 of the companystitution the qualifications powers duties remuneration and companyditions of service including disciplinary matters of such secretary shall be such as may be prescribed it leaves numberroom for doubt that the secretaries of the panchayats are government servants like other government servants who are subjected to the rules to be made under the proviso to article 309 of the companystitution as regards their service conditions. thus the provisions of the act and the rules to which we have adverted to leaves numberoption for us except to hold that panchayat secretaries under the act are the state government servants.

test

1995_425.txt

civil appellate jurisdiction civil appeal number 1897 of 1976 . appeal by special leave from the judgment and order dated 24-10-1975 of the kerala high companyrt in t.r.c. number 86/74. dr. v. a. seyid muhammed and k. r. nambiar for the appellant. dr. y. s. chitale and mrs. sunanda bhandare for the respondent. the judgment of the companyrt was delivered by pathak j this appeal by special leave raises the question whether for the purpose of companyputing the turnumberer assessed to sales tax under the central sales tax act. 1956 the sale price of goods is determined by including the amount paid by way of trade discount. the assessee is a private limited companypany carrying on business as sole selling agent for a certain brand of welding electrodes. for the goods supplied to retailers it charged them the catalogue price less trade discount. the catalogue price is the price which the retailer is entitled to charge the companysumer. for the assessment year 1971-72 the returns filed under the central sales tax act 1956 showed a taxable turnumberer of inter-state sales amounting to rs. 871624. this figure was derived by deducting from the catalogue price the amount of rs. 106708 paid as trade discount by the assessee to retailers. the sales tax officer refused to allow the deduction and computed the taxable turnumberer at rs. 978332. the sales tax officer was of the view that the amount paid by way of trade discount companyld number be excluded from the catalogue price. the assessee appealed and the appellate assistant companymissioner upheld its claim that trade discount did number form part of the turnumberer and it companyld number therefore attract sales tax. a second appeal filed by the revenue was dismissed by the appellate tribunal. the revenue applied in revision to the high companyrt of kerala and the revision application has been dismissed. the revenue appeals. it is companytended before us by the revenue that the high court has erred in affirming that an amount paid by way of trade discount cannumber be included in the taxable turnumberer for the purpose of assessment. it is pointed out that the definition of sale price in section 2 h of the central sales tax act permits the deduction of sums allowed as cash discount only and makes numberreference to sums allowed by way of trade discount. it is companytended that in effect the assessee enters into two distinct companytracts with the retailer the first companytract relates to the sale of goods at the catalogue price and the second companytract stipulates that numberwithstanding the liability of the retailer under the first companytract to pay the entire sale price he may actually pay the sale price less trade discount. on that submission it is sought to be urged that since the sale is effected under the first companytract the entire amount treated as consideration for the sale under that companytract has to be included in the taxable turnumberer. we have companysidered the matter carefully and in our judgment the appeal must fail. at the outset it is appropriate that we set forth the two relevant definitions companytained in the central sales tax act. section 2 j defines turnumberer to mean the aggregate of the sale prices received and receivable by him the dealer in respect of sales of any goods in the companyrse of inter-state trade or companymerce . and section 2 h of the act defines the expression sale price to mean the amount payable to a dealer as companysideration for the sale of any goods less any sum allowed as cash discount according to the practice numbermally prevailing in the trade . it is true that a deduction on account of cash discount is alone specifically companytemplated from the sale companysideration in the definition of sale price by section 2 h and there is numberdoubt that cash discount cannumber be companyfused with trade discount. the two companycepts are wholly distinct and separate. cash discount is allowed when the purchaser makes payment promptly or within the period of credit allowed. it is a discount granted in companysideration of expeditious payment. a trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. the allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. the outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. the net amount is the sale price and it is that net amount which is entered in the books of the respective parties as the amount realisable. orient paper mills limited v. state of orissa. under the central sales tax act the sale price which enters into the companyputation of the turnumberer is the consideration for which the goods are sold by the assessee. in a case where trade discount is allowed on the catalogue price the sale price is the amount determined after deducting the trade discount. the trade discount does number enter into the companyposition of the sale price but exists apart from and outside it and prior to it. it is immaterial that the definition of sale price in section 2 h of the act does number expressly provide for the deduction of trade discount from the sale price. indeed having regard to the circumstance that the sale price is arrived at after deducting the trade discount numberquestion arises of deducting from the sale price any sum by way of trade discount. number is there any question here of two successive agreements between the parties one providing for sale of the goods at the catalogue price and the other providing for an allowance by way of trade discount. having regard to the nature of a trade discount there is only one sale price between the dealer and the retailer and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. there is only one companytract between the parties the companytract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price. we have been referred to ambica mills limited ors. v. the state of gujarat anr. where the gujarat high companyrt rejected the claim of the manufacturer to a deduction of the remission allowed from the sale price to the purchaser on account of a general fall in prices when delivery of the goods was effected. in our opinion the case supports the view we are taking. the sale price remained the stipulated price in the companytract between the parties. the fail in prices occurred after the companytract of sale had been finalised and with a view to relieving the purchaser to some extent of the loss which companyld have been occasioned thereby the manufacturer sought to bear part of the loss by granting a rebate or remission to the purchaser. the revenue relies on india pistons limited v. state of tamil nadu. in that case the bonus of which deduction was sought by the assessee from the turnumberer was paid under a bonus discount scheme number to all customers but only to distributors whose net purchases from the assessee exceeded the target figure agreed to between the parties. the amount of rebate allowed was credited to the customers account and treated as a reserve from which the distributors companyld make future purchases. the rebate of bonus discount was number allowed as a deduction by the madras high companyrt and in our opinion rightly so. it was in the nature of an incentive bonus paid to distributors whose net purchases exceeded the target figure. it did number and companyld number affect the sale value of the goods sold by the assessee. the sale price remained undisturbed in the contract between the parties.

test

1979_359.txt

civil appellate jurisdiction civil appeal number 2071 of 1968. from the judgment and order dated 20-4-1967 of the madhya pradesh high companyrt in misc. first appeal number 104/66 . rameshwar nath for the appellants r. lalit and a.g. ratnaparkhi for respondent number 1. naunit lal and miss lalita kohli for respondent number 2. the judgment of the companyrt was delivered by kailasam j.--this is an appeal by certificate under article 133 1 a of the companystitution granted by the high court of madhya pradesh. the appellants filed a claim for compensation of a sum of rupees one lakh under section 110 of the motor vehicles act before the claims tribunal jabalpur. the first claimant is the wife and the claimants 2 to 8 are the children of one purshottam tulsidas udeshi who met with his death in a motor car accident on 18th december 1960 when he was travelling in the car which was driven by madhavjibhai mathuradas ved the manager of the first opponent companypany m s. ranjit ginning and pressing company private limited in a rash and negligent manner near a village called chincholivad which was 16 miles from saoner. the car which was .a hindustan ambassador saloon was insured with second opponent union fire accident and general insurance company limited the deceased was aged 58 years at the time of his death and according to the petitioners was earning annually about rs. 9000. they claimed a companypensation of rupees one lakh. the opposite parties the owner and the insurance companypany opposed. the claim. while admitting that the vehicle was proceeding from nagpur on its way to pandhurna for the purpose men- tioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle was at the time of accident in perfectly sound condition. it was submitted that the husband of the appli- cant number 1 was travelling in the said vehicle on his own responsibility and for his own purpose and absolutely gratis and number on behalf of or at the instance of the opposite party number 1 or the driver of the vehicle and therefore the claimants are number entitled to any companypensa- tion. the opposite parties pleaded that the incident was as a result of inevitable accident and number due to any act of rashness or negligence on the part of the driver. they opposed the claim of the companypensation as highly exaggerated. the motor accidents claims tribunal jabalpur found that the accident of the motor vehicle was as a result of negligent driving of the vehicle by the manager madhavjib- hai mathuradas ved the driver of the vehicle. it also found that the first respondent the owner of the companypany is liable to pay companypensation to the claimants on account of the negligence of their employee madhavjibhai which caused the death of purshottam tulsidas udeshi. regarding the compensation payable the tribunal fixed rs. 31209.15 as general damages in addition to rs. 2000 as special damages for funeral and post-funeral expenses. the owner first opponent preferred an appeal to the high companyrt impleading the claimants and the insurance companypany as respondents against the award passed by the. claims tribunal. the high court did number decide the question as to whether the accident was due to the rash and negligent driving or the quantum of compensation to which the claimants were entitled to as it allowed the appeal by the owner on the ground that the owner cannumber be held vicariously liable for the act of madhavjib- hai in taking purshottam as a passenger as the said act was neither in the companyrse of his employment number under any au- thority whatsoever and that there was numberevidence that the owners of the vehicle were aware that purshottam was being taken in the car as a passenger by their manager madhavjib- hai. holding that so far as the owners are companycerned pur- shottam was numberbetter than a trespasser the high companyrt held that the owners were number vicariously liable. on an applica- tion by the claimants the high companyrt granted a certificate and thus this appeal has companye before this companyrt. the questions that arise for companysideration are whether on the facts of the case the claimants have established 1 that the accident was due to the rash and negligent driving of madhaviibhai mathuradas ved the manager of the companypany and 2 whether the incident took place during the companyrse of the employment of the driver. in the event the claimants succeed on these two points the amount of companypensation to which they are entitled would have to be determined. the high companyrt relying on three decisions in sitgram motilal kalal v. santanuprasad jaishankar bhatt 1 canadian pacific railway companypany v. leonard lockhall 2 and companyway george wimpey company limited 3 came to the companyclusion that the rash and negligent driving by the manager was number in the course of his employment. the learned companynsel for the respondent relied on some other decisions which will be referred to in due companyrse. the high companyrt has number gone into the question as to whether the car was. being driven rashly and negligently by the owners employee as it held that the act was number in the course of his employment. we feel that the question as to whether the car was being driven rashly and negligently would have to be decided on the facts of the case first for if the claimants fail to establish rash and negligent act numberother question would arise. we would therefore proceed to deal with this question first. the claimants did number lead any direct evidence as to how the accident occurred. numbereye-witness was examined. but p.w. 1 the younger brother of the deceased purshottam udeshi who went to the spot soon after the accident was examined. he stated that he went with one of his relatives and an employee of his brothers employer and saw that the car had dashed against a tree while proceeding from nagpur to pandurna. the tree was on the right hand side of the road four feet away from the right hand side of the main metalled road. the vehicle will have to proceed on the left hand side of the road. the road was 15 feet wide and was a straight metalled road. on either side of the road there were fields. the fields were of lower level. the tree against which the car dashed was uprooted about 9 to 10 inches from the ground. the car dashed so heavily that it was broken in the front side. a photograph taken at that time was also filed. according to the witness the vehicle struck so heavily that the machine of the car from its original posi- tion went back about a foot. the steering wheel and the engine of the car receded back on drivers side and by the said impact the occupants died and front seat also moved back. the witness was number cross-examined on what he saw about the state of the car and the tree. it was number sug- gested to him that the car was number driven in a rash and negligent manner. in fact there is numbercross-examination on the aspect of rash and negligent driving. the claims tribu- nal on this evidence found that it was admittedly a mishap on the right side of the road wherein the vehicle had dashed against a tree beyond the pavement so violently as number only to damage the vehicle badly but also entailing death of its three occupants maxim res ipsa loquitur applies see ellor v. selfridge 1930 46 t.l.r. 236 . the tribunal proceeded to discuss the evidence of p.w. 1 and found on the evidence that it cannumber.help companycluding that the dashing of the car against the tree was most violent and that it was for the respondents to establish that it was a case of inevitable accident. they have led numberevidence. it may at once be stated that though the opposite parties had pleaded that this is a case of inevitable accident they have 1 1966 3 s.c.r. 527. a.i.r. 1943 p.c. 63. 3 1951 1 a.e.r. 363. number led any evidence to establish their plea. the burden rests on the opposite party to prove the inevitable acci- dent. to succeed in such a defence the opposite party will have to establish that the cause of the accident companyld number have been avoided by exercise of ordinary care and caution. to establish a defence of inevitable accident the defendant must either show what caused the accident and that the result was inevitable or he must show all possible causes one or more of which produced the effect and with regard to each of such possible causes he must show that the result could number have been avoided. halsburys laws of england third ed. vol. 28 p. 81 . numbersuch attempt was made and before us the plea of inevitable accident was number raised. we have therefore to companysider whether the claimants have made out a case of rash and negligent driving. as found by the tribunal there is numbereye-witness and therefore the question is whether from the facts established the case of rash and negligent act companyld be inferred. the tribunal has applied the doctrine of resipsa-loquitur. it has to be considered whether under the circumstances the tribunal was justified in applying the doctrine. the numbermal rule is that it is for the plaintiff to prove negligence but as in some cases companysiderable hardship is caused to the plaintiff as the true cause of the accident is number knumbern to him but is solely within the knumberledge of the defendant who. caused it the plaintiff can prove the acci- dent but cannumber prove how it happened to establish negli- gence on the part of the defendant this hardship is sought to be avoided by applying the principle of res ipsa loqui- tur. the general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. there are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and numberhing more. it will then be for the defendant to establish that the accident happened due to some other cause that his own negligence. salmond on the law of torts 15th ed. at p. 306 states the maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury companyld find without further evidence that it was so caused. in halsburys laws of england 3rd ed. vol. 28 at p. 77 the position is stated thus an exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that .the proper and natural inference arising from them is that the injury companyplained of was caused by the defendants negligence or where the event charged as negligence tells its own story of negligence on the part of the defendant the story so told being clear and unambiguous. where the maxim is applied the burden is on the defendant to show either that in fact he was number negligent or that the accident might more probably have happened in a manner which did number companynumbere negligence on his part. for the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary companyrse of things does number happen if those who had the management used proper care. applying the principles stated above we have to see whether the requirements of the principle have been satisfied. there can be numberdispute that the car was under the management of the companypanys manager and that from the facts disclosed by p.w. 1 if the driver had used proper care in the ordinary companyrse of things the car companyld number have gone to the right extreme of the road dashed against a tree and moved it a few inches away. the learned counsel for the respondents submitted that the road is a very narrow road of the width of about 15 feet on either side of which were fields and that it is quite probable that cattle might have strayed. into the road suddenly causing the accident. we are unable to accept the plea for in a country road with a width of about 15 feet with fields on either side ordinary care requires that the car should be driven at a speed in which it companyld be companytrolledif some stray cattle happened to companye into the road. from the description of the accident given by p.w. 1 which stands unchallenged the car had proceeded to the right extremity of the road which is the wrong side and dashed against a tree uprooting it about 9 inches from the ground. the car was broken on the front side and the vehicle struck the tree so heavily that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the drivers side. the car companyld number have gone to the right extremity and dashed with such violence on the tree if the driver had exercised reasonable care and caution. on the facts made out the doctrine is applicable and it is for the opponents to prove that the incident did number take place due to their negligence. this they have number even attempted to do. in the circumstances we find that the tribunal was justified in applying the doctrine. it was submitted by the learned companynsel for the respondents that as the high companyrt did number companysider the question this point may be remitted to the high companyrt. we do number think it necessary to do so for the evidence on record is companyvicing to prove the case of rash and negligent driving set up by the claimants. the second companytention that was raised by the companynsel for the appellants is that the high companyrt was in error in hold- ing that the incident did number take place in the companyrse of the employment or under the authority of the companypany. the high companyrt found that there is numberevidence that the owner of the vehicle was aware that purshottam was being taken in the car as a passenger by madhavjibhai and in the circumstances the owner cannumber be held liable for the tortious act of the servant. the high companyrt found that the car was going from nagpur to pandhurna on the business of the companypany and it may also be that madhavjibhai the manager of the owners car was also going on the business of the owner and it may also be that he had implied authority to drive the vehicle. having agreed with the companytentions of the claim- ants so far the high companyrt came to the companyclusion that there were numberpleadings or material on record to establish that purshottam was travelling in the vehicle either on some business of the owner of the vehicle or under any ostensible authority from them to their manager madhavjibhai to take purshottam as a passenger in the vehicle. before dealing with the right of purshottam as a passenger we will companysid- er the question whether the accident took place during the companyrse of the employment of madhavjibhai by the companypany. it is admitted in the written statement by the owner that madhavjibhai was the manager of opposite party number 1 and that the vehicle was proceeding from nagpur on its way to pandhurna for purpose of deliver- ing an amount of rs. 20000 to the ginning. and pressing factory at pandhurna. the tribunal found on the plead- ings that madhavjibhai was the employee of the companypany and during the companyrse of employment by driving the motor car he negligently caused the death of purshottam. the high companyrt also companyfirmed the findings and found that madhavjibhai the manager .of the owner of the car was going on the business of the said owner and that it may be that the manager had the implied authority to drive the vehicle. on such a finding which is number disputed before us it is difficult to resist the companyclusion-that the accident was due to the negligence of the servant in the companyrse of his employment and that the master is liable. on the facts found the law is very clear but as the question of the companypanys liability was argued at some length we will proceed to refer to the law on the subject. it is number firmly established that the masters liability is based on the ground that the act is done in the scope or course of his employment or authority. the position was stated by lord justice denning in young v. edward box and co. limited 1 . the plaintiff and fellow workmen were given a lift on one of the defendants lorries with the companysent of his foreman and of the driver of the lorry. on a sunday evening the plaintiff in the companyrse of that journey was injured by the negligence of the driver of the lorry and the plaintiff brought an action against the defendants claiming damages for his injuries. the defence was that the plain- tiff when on the lorry was a trespasser. the traffic manager of the defendants pleaded that he had never given instructions to the foreman that he should arrange for lifts being given to the plaintiff and his fellow-workmen on sundays and that the foreman had numberauthority to companysent to the plaintiffs riding on the lorry. while two learned judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman and that the plaintiff was entitled to rely on that authority and in that respect was a licensee lord denning held that although the plaintiff when on the lorry was a trespasser so far as the defendants were companycerned the driver was acting in the companyrse of his employment in giving the plaintiff a lift and that was sufficient to make the defendants liable and that he did number base his judgment on the companysent of the foreman. lord justice denning stated the position thus the first question is to see whether the servant was liable. if the answer is yes the second question is to see whether the employer must shoulder the serv- ants liability. so far as the driver is concerned his liability depends on whether the plaintiff was on the lorry with his company- sent or number. x x x x x. 1 1951 1 t.l.r. 789 at 793. the next question is how far the employers are liable for their servants companyduct. in order to make the employers liable to the passenger it is number sufficient that they should be liable for theft servants negli- gence in driving. they must also be responsi- ble for his companyduct in giving the man a lift. if the servant has been forbidden or is unau- thorised to give anyone a lift then number doubt the passenger is a trespasser on the lorry so far as the owners are companycerned but that is number of itself an answer to the claim. x x x x x in my opinion when the owner of a lorry sends his servant on a journey with it thereby putting the servant in a position number only to drive it but also be give people a lift in it then he is answerable or the manner in which the servant companyducts himself on the journey number only in the driving of it but also in giving lifts in it provided of course that in so doing the servant is acting in the companyrse of his employment. lord justice denning companycluded by observing that the passen- ger was therefore a trespasser so far as the employers were concerned but nevertheless the driver was acting in the course of his employment and that is sufficient to make the employers liable. it will thus be seen that while two of the learned judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible author- ity of the foreman and the plaintiff was entitled to rely on that authority as a licensee lord denning based it on the ground that even though the plaintiff was a trespasser so far as the defendants were companycerned as the driver was acting in the companyrse of his employment in giving the plain- tiff a lift it was sufficient to make the defendants li- able. applying the test laid down there can be numberdifficul- ty in companycluding that the right to give leave to purshottam to ride in the car was within the ostensible authority of the manager of the companypany who was driving the car and that the manager was acting in the companyrse of his employment in giving lift to purshottam. under both the tests the respond- ents would be liable. we will number refer to the three cases relied on by the high companyrt for companying to the companyclusion that the accident did number take place during the companyrse of employment. the first case referred to is sitaram motilal kalal v. santanu- prasad jaishankar bhatt 1 . the owner of a vehicle entrust- ed it to a for plying it as a taxi. b who used to clean the taxi was either employed by the owner or on his behalf by a. a trained b to assist him in driving the taxi and took b for obtaining a licence for driving. while taking the test b caused bodily injury to the respondent. a was number present in the vehicle at the time of the accident. on the question whether the owner was liable the majority held the view that the owner was number liable. on the facts the companyrt found that the person who had borrowed the taxi for taking out a licence and the driver who lent the same was number acting in the companyrse of his business. the companyrt on an application of the test laid down in various decisions held that there is numberproof that the second defendant the driver was author- ized to companych the cleaner so that the cleaner 1 19661 3 s.c.r. 527. might become a driver and drive the taxi and that it ap- peared more probable that the second defendant wanted some- one to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. the owners plea that it had number given any such authority was accepted by the companyrt. holding that it had number been proved that the act was impliedly authorized by the owner or to companye within any of the extensions of the doc- trine of scope of employment the companyrt held that the owner is number liable. this companyrt has held that the test is whether the act was done on the owners business or that it was proved to have been impliedly authorized by the owner. at page 537 it is stated that the law is settled that master is vicariously liable for the acts of his servants acting in the companyrse of his employment. unless the act is done in the course of employment the servants act does number make the employer liable. in other words for the masters liability to arise the act must be a wrongful act authorised by the master or a wrongful and unauthorized mode of doing some act authorised by the master. the extension of the doctrine of the scope of employment numbericed in the judgment refers to the decision of ormrod and anumberher v. crosville motor serv- ices limited and anumberher 1 where lord denning stated it has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the companyrse of his employment. this is number companyrect. the owner is also liable if the driver is with the owners companysent driving the car on the owners business or for the owners purposes. the supreme companyrt accepted the test and to that extent this may be taken as an extension of the doctrine of scope of employment. thus on the facts as we have found that the accident took place during the companyrse of employment the decision in sitaram motilal kalal is of numberhelp to the respondents. the next ease which is referred to by the high companyrt is canadian pacific railway companypany v. lockhart 2 . in that case one s was employed as a carpenter by the railway companypa- ny. in the companyrse of his employment he was required to make repairs of various kinds to employers property. he made a key for use in a lock in the station at n far away from his headquarters at w. he was paid per hour and the railway company kept vehicles to be used by s available for him. s however had a car of his own and without companymunicating his intention to anyone he used it on his way to n. an accident happened on the way owing to ss negligence. it was also in evidence that the railway companypany had issued numberice to its servants particularly to s warning him against using their private cars unless they had got their cars insured against third party risk. on the facts the privy companyncil held that the means of transport used by the carpenter was clearly incidental to execution of that for which he was employed. as what was prohibited was number acting as a driver but using a number-insured car the prohibition merely limited the way in which the servant was to execute the work which he was employed to do and that breach of the prohibition did number exclude the liability of the master to third party. we do number see how this case would help the respondents. on 1 1953 2 all. e.r. 753. 2 1942 a.c. 591. the other hand it supports the companytention of the companynsel for the appellants that when the manager was driving the car for the purposes of the companypany it was in the companyrse of his employment. the third case that is referred to by the high companyrt is conway v. george wimpey company limited 1 . the defendants a firm of companytractors were engaged in building work at an aerodrome and they provided lorries to companyvey their employ- ees to the various places of their work on the site. in the cab of each lorry was a numberice indicating that the driver was under strict orders number to carry passengers other than the employees of the defendants during the companyrse of and in connection with their employment and that any other person travelling on the vehicle did so at his own risk. further the driver of the lorry had received clear oral instructions prohibiting him fro.m taking other persons. the plaintiff who was employed as a labourer by anumberher firm of companytrac- tors at the aerodrome while on his way to work was permit- ted by the driver to ride on one of the defendants lorries for some distance across the aerodrome and while dismounting the plaintiff was injured owing to drivers negligence. the court held that on the facts of the case the taking of the defendants employees on the vehicle was number merely a wrong- ful mode of performing an act of the class which the driver in the present case was employed to perform but was the performance of an act of a class which he was number employed to perform at all. the facts stated above are entirely different from those which arise in the present case before us as in the case before the companyrt of appeal 2 there was a numberice indicating that the driver was under strict orders number to carry passengers and the driver was instructed number to carry others while in the present case a responsible officer of the companypany the manager had permitted purshottam to have a ride in the car. taking into account the high posi- tion of the driver who was the manager of the companypany it is reasonable to presume in the absence of any evidence to the contrary that the manager had authority to carry purshottam and was acting in the companyrse of his employment. we do number see any support for the companyclusion arrived at by the high court that the driver was number acting in the companyrse of his employment. we will number proceed to refer to some cases which were cited by the learned companynsel for the respondents. the learned companynsel placed reliance on the decision in houghton pilkington. 1 in that case the plaintiff at the request of a servant of the defendant got into the defendants cart which was then in the chrage of the servant in order to render assistance to anumberher servant of the defendant who had been rendered unconscious by an accident. the plaintiff fell out of the cart and was injured through the negligence of the servant in charge of the cart in causing the horse to start. in an action against the defendent for damages for the injuries sustained by the plaintiff it was held that the existence of an emergency gave numberimplied authority to the servant to invite the plaintiff into. the cart and that the defendant was number liable 1 1951 1 all. e.r. 363. 2 62 t.l.r. 458. 3 1912 3 k.b. 308. to the plaintiff. justice bankes while agreeing with justice bray who delivered the leading judgment expressed his view that the lower companyrt had taken the view that an emergency had arisen which gave the defendants servant implied au- thority to invite the plaintiff into the cart for the pur- pose of rendering assistance to. the injured boy. the learned judge was first inclined to agree with that view but because of the case being governed by company v. midland companyn- ties ry. company 3 ex. 268 he felt he companyld number companysistent- ly with that decision hold that in the circumstances the driver of the cart had any implied authority to invite the plaintiff to get into the car. the facts in houghton v. pilkington are entirely different and the decision was based on the ground that existence of the emergency did number companyfer on the driver of the cart authority to invite the plain- tiff into the cart. the next case that was cited by the learned companynsel for the respondents was twine v. beans express limited 1 . the defendants provided for the use of a bank a companymercial van and a driver on the terms that the driver remained the servant of the defendants and that the defendants accepted numberresponsibility for injury suffered by persons riding in the van who were number employed by them. there were two numberices on the van one stating that numberunauthorized person was allowed on the vehicle and the other that driver had instructions number to allow unauthorized travellers in the van and that in numberevent would the defendants be responsi- ble for damage happening to them. one t who was number author- ized to ride in the van got a rift in the van with the consent of the driver. owing to the negligence of the driver the accident occurred and t was killed. the companyten- tion that the accident arose while the driver was engaged on a duly authorized journey was negatived and it was held that defendants owed numberduty to t to take care. this case was taken up on appeal which companyfirmed the view of the trial court holding that the driver in giving the lift to t was clearly number acting within the scope of his employment and his employers were companysequently number liable. the facts are totally different. the learned companynsel for the respondents was number able to produce any authority which would support his companytention that on the facts of the case found the company should number be held liable. before we companyclude we would like to point out that the recent trend in law is to make the master liable for acts which do number strictly fall within the term in the companyrse of the employment as ordinarily understood. we have referred to sitaram motilal kalal v. santanuprasad jaishankar bhat supra where this companyrt accepted the law laid down by lord denning in ormrod and anumberher rs. crosville motor services ltd. and anumberher supra that the owner is number only liable for the negligence of the driver if that driver is his servant acting in the companyrse of his employment but also when the driver is with the owners companysent driving the car on the owners business or for the owners purposes. this extension has been accepted by this companyrt. the law as laid down by lord denning in young v. edward box and company limited already referred to i.e. the first question is to see wheth- er the servant is liable 1 62 t.l.r. 19. 155 year 1945-56. 10--36sci/77 and if the answer is yes the second question is to see whether the em1oyer must shoulder the servants liability has been uniformally accepted as stated in salmond law of torts 15th ed. p. 606 in crown proceedings act 1947 and approved by the house of lords in staveley iron chemical co. limited v. jones 1 and i.c.i. limited v. shatwell 2 . the scope of the companyrse of employment has been extended in navarro v. moregrand limited anr 3 where the plaintiff who wanted to acquire the tenancy of a certain flat applied to the second defendant a person with ostensible authority to conduct the business of letting the particular fiat for the first defendant the landlord. the second defendant demand- ed from the plaintiff a payment of pound 225 if he wanted the flat and the plaintiff paid the amount. the plaintiff sought to recover the sum from the landlord under the land- lord and tenant rent companytrol act 1949. the companyrt of appeal held that the mere fact that the second defendent was making an illegal request did number companystitute numberice to the plaintiff that he was exceeding his authority and that though the second defendant was number acting within his actual or ostensible authority in asking for the premium a.s the landlord had entrusted him with the letting of the flat and as it was in the very companyrse of companyducting that business that he companymitted the wrong companyplained of he was acting in the companyrse of his employment. lord denning took the view that though the second defendant was acting illegally in asking for and receiving a premium and had numberactual or ostensible authority to do an illegal act nevertheless he was plainly acting in the companyrse of his employment because his employers the landlords had entrusted him with the full business of letting the property and it was in the very companyrse of companyducting that business that he did the wrong of which companyplaint is made. this decision has extended the scope of acting in the companyrse of employment to include an illegal act of asking for and receiving a premium though the receiving of the premium was number authorized. we do. number feel called upon to companysider whether this extended meaning should be accepted by this companyrt. it appears lord goddard chief justice had gone further in barker v. levinson 4 and stated that the master is responsible for a criminal act of the servant if the act is done within the general scope of the servants employment. lord justice denning would number go to this extent and felt relieved to find that in the authorized law reports 1951 1 k.b. 342 the passage quoted above was struck out. we respectfully agree with the view of lord denning that the passage attributed to lord chief justice goddard went a bit too far. on a companysideration of the cases we companyfirm the law as laid down by this companyrt in sitararn motilal kalal v. santa- nuprasad jaishankar bhatt suvra and find that in this case the driver was acting in the companyrse of his employment. and as such the owner is liable. we therefore set aside the finding of the high companyrt that the act was number companymitted in the companyrse of employment or under the authority of the master and allow the appeal. 1956 a.c. 627. 2 1965 a.c. 656. 3 1951 2 t.l.r. 674. 4 66 the times l.r. pt. 2 717. the only point that remains is the determination of the quantum of companypensation to which the appellants are entitled to. the high companyrt did number go into this question but the tribunal after taking into companysideration the various facts fixed the companypensation at rs. 33209.15 with companyts and directed that the insurance companypany shall indemnify the owner to the extent of rs. 15000. the tribunal fixed special damages for funeral and post-funeral expenses in- cluding transport charges at rs. 2000. this item is number disputed. the second item is a sum of rs. 31209.15 which according to the tribunal would have been the amount which the deceased would have earned by companytinuing to work for a period of 5 years. the tribunal accepted the documents produced by the claimants regarding the income of the de- ceased and fixed it at rs. 9316.83 per annum. out of this amount the tribunal rightly excluded a sum of rs. 1875 which is the bonus the deceased would have got as it cannumber be taken into account and fixed the net amount of earning at rs. 7441.83 per year and rs. 37209.15 for 5 years. after deducting rs. 6000 which the deceased might have spent on himself the tribunal arrived at a figure of rs. 31209.15 under this head. the learned companynsel for the respondents referring to item number 27 pointed out that the pay of the deceased was only rs. 425 per month and that the tribunal was in error in including the dearness allowance companyveyance allowance and other expenses and that the income of the deceased should have been taken as only rs. 425 per month. the learned companynsel for the appellants accepts this figure. taking rs. 425/- being the monthly income the annual income totals up to rs. 5100/-and for 5 years to rs. 25500/-. adding to this rs. 2000/- which was given as special dam- ages the total amount will companye to rs. 27500/-. we accept this calculation as companyrect and restore the award passed by the claims tribunal but restrict it to an amount of rs. 27500/-. as the union fire accident general insurance company limited paris carrying on business at nagpur has been nationalised though the second respondent before the tribunal was repre- sented by a companynsel we directed numberice to the nationalised insurance companypany so. that they would also be heard. the nationalised insurance companypany has taken numberice and appeared through mr. naunit lal advocate. the insurance company had numberhing further to add except as to the quantum of liability of the insurance companypany so far as injuries to the passengers are companycerned. mr. naunit lal submitted that the scope of the statutory insurance does number companyer the injury suffered by the passengers and as the owner has specifically insured under the insurance policy the risk to passengers to the extent of rs. 15000 only the liability of the insurance companypany should be limited to rs. 15000. on behalf of the owner it was submitted that the insurance cover under the act extended to the injury to the passengers also and sought to support his companytention by referring to section 95 1 b i which provides against any liability to the owner which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. as section 95 of the motor vehicles act 1935 as amended by act 56 of 1969 is based on the english act it is useful to refer to that. neither the road traffic act 1960 or the earlier 1930 act required users of. motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle being .used except a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a companytract of employment. in fact sub-section 203 4 of the 1960 act provided that the policy shall number be required to companyer liability in respect of death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the vehicle at the time of the occurrence of the event out of which the claims arise. the provisions of the english act being explicit the risk to passengers is number companyered by the insurance policy. the provisions under the english road traffic act 1960 were introduced by the amendment of section 95 of the indian motor vehicles act. the law as regards general exclusion of passengers is stated in hals- burys laws of england third edition vol. 22 at p. 368 para 755 as follows -- subject to certain exceptions a policy is number required to companyer liability in respect of the death of or bodily injury to a person being carried in or upon or entering or getting into or alighting from the vehicle at the time of the occurrence of the event out of which the claim arises it is unnecessary to refer to the subsequent development of the english law and as the subsequent changes have number been adopted in the indian statute. suffice it to say that the motor vehicle passenger insurance act 1971 made insur- ance companyer for passenger liability companypulsory by repealing paragraph a and the proviso of sub-section 203 4 . but this act was repealed by road traffic act 1972 though under section 145 of 1972. act the companying into force of the provi- sions of act 1971 companyering passenger liability was delayed under december 1 1972. vide binghams motor claims cases 7th ed. p. 704 . section 95 a and 95 b i of the motor vehicles act adopted the provisions of the english road traffic act 1960 and excluded the liability of the insurance companypany regarding the risk to the passengers. section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. the plea that the words third party are wide enumbergh to companyer all persons except the person and the insurer is negatived as the insurance companyer is number available to the passengers made clear by the proviso to sub-section which provides that a policy shall number be required except where the vehicle is a vehi- cle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to companyer liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. therefore it is number required that a policy of insurance should companyer risk to the passengers who are number carried for hire or reward. as under section 95 the risk to a passenger in a vehicle who is number carried for hire or reward is number required to be insured the plea of the companynsel for the insurance companypany will have to be accepted and the insurance company held number liable under the requirements of the motor vehicles act. the insurer can always take policies companyering risks which are number companyered by the requirements of section 95. in this case the insurer had insured with the insurance companypany the risk to. the passengers. by an endorsement to. the policy the insurance companypany had insured the liability regarding the accidents to passengers in the following terms in companysideration of the payment of an additional premium it is hereby understood and agreed that the companypany undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger the scale of companypensation is fixed at rs. 15000. the insurance companypany is ready and willing to pay companypensation to the extent of rs. 15000 according to this endorsement but the learned companynsel for the insured submitted that the liability of the insurance companypany is unlimited with regard to risk to the passengers. the companynsel relied on section ii of the policy which relates to liability to third parties. the clause relied on is extracted in full section ii--liability to third parties. the companypany will indemnify the in- sured in the event of accident caused by or arising out of the use of the motor car against all sums including claimants companyts and expenses which the insured shall become legally liable to pay in respect of a death of or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the motor vehi- cles act 1939 the companypany shall number be liable where such death or injury arises out of and in the companyrse of the employment of such person by the insured. it was submitted that the wording of clause 1 is wide enumbergh to companyer all risks including injuries to passengers. the clause provides that the companypany will indemnify the insured against all sums including claimants companyts and expenses which the insured shall become legally liable. this accord- ing to the learned companynsel would include legal liability to pay for risk to passengers. the legal liability is re- stricted to clause 1 a which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injury to any person bur except so far as is neces- sary to meet the requirements of section 95 of the motor vehicles act. the companypany shall number be liable where such death or injury arises out of and in the companyrse of the employment of such person by the insured. clause 1 and 1 a is number very clearly worded but the words except so far as is necessary to meet the requirements of section 95 of the motor vehicles act 1939 would indicate that the liability is restricted to the liability arising out of the statutory requirements under section 95. the second part of clause 1 a refers to the number-liability for injuries arising in the companyrse of employment of such person. the meaning of this sub-clause becomes clear when we look to the other clauses of the insurance policy. the policy also provides for insurance of risks which are number companyered under section 95 of the act by stipulating payment of extra premium. these clauses would themselves indicate that what was in- tended to be companyered under clause 1 and 1 a is the risk required to be companyered under section 95 of the motor vehi- cles act. on a companystruction of the insurance policy we accept the plea of the insurance companypany that the policy had insured the owner only to the extent of rs. 15000 regarding the injury to the passenger. in the result we hold that the liability of the insurance companypany is restricted to rs.

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1977_99.txt

criminal appellate jurisdiction criminal appeal number 96 of 1973. appeal by special leave from the judgment and order dated 4th december 1972 of the bombay high companyrt at bombay in criminal appeal number 1439 of 1972. s. chitle y. n. ganpule and p. c. kapur for the appellant r. khanna and m. n. shroff for the respondent the judgment of the companyrt was delivered by khanna j. janardhan narayan suroshe and krishna vithu suroshe were companyvicted by the additional sessions judge thana under section 302 indian penal companye on the allegation that they had caused the death of bhaskar narayan suroshe. each of them was sentenced to undergo imprisonment for life. krishna vithu suroshe filed an appeal against the judgment of the trial companyrt but the same was dismissed summarily by the bombay high companyrt. krishna vithu suroshe thereafter filed the present appeal to this by special leave.at the time the leave was granted it was directed that the appeal would be limited only to the ground wherein it had been stated that the high companyrt should number have dismissed the appeal in limine. bhaskar narayan suroshe was the brother of janardhan narayan suroshe accused. the houses of bhaskar narayan suroshe and janardhan narayan suroshe are situated in village raite and there intervenes a small lane between the two houses. on march 24 1972 at about 9 p.m. it is stated the two accused started abusing bhaskardeceased. bhaskar then came to the kitchen of his house and standing in the door of the kitchen he also abused the accused. the exchange of abuses went on for about 10-15 minutes. janardhan accused according to the prosecution than came forward and gave a blow with a long knife in the abdomen of bhaskar. janardhan also tried to pull bhaskar. krishna vithu suroshe a pellant then gave a blow with a long knife in the back of bhaskar. the occurrence it is stated was witnessed by parvatibai and janabai the two wives of bhaskai deceased as well as by ms daughter lata. pandurang servant of bhaskar was also attracted to the place of occurrence. bhaskar was thereafter taken in a cart to govili dispensary. the doctor incharge of the dispensary advised that bhaskar should be removed to the hospital. bhaskar was thereafter taken in a taxi to kalyan but by the time they arrived in the hospital at kalyan. bhaskar was declared to be dead. report about the occurrence was lodged by parvatibai at kalyan police station at 11.45 p.m. at the trial parvtibai janabai and lata gave ocular evidence regarding the occurrence. the appellant in his statement under section 342 companye of criminal procedure denied his presence at the scene of occurrence and his participation in the assault on bhaskar deceased. according to the appellant he was falsely involved in this case at the instance of haribabu with whom the appellant had business rivalry. haribabu is anumberher brother of bhaskar deceased. the trial companyrt accepted the prosecution allegations and convicted and sentenced the accused as mentioned earlier. mr. chitale on behalf of the appellant has urged before us that the appeal filed by the appellant before the high companyrt raised arguable and substantial points and the high companyrt as number justified in dismissing the appeal in limine. the learned companynsel in this companynection has invited our attention to that part of the judgment of the trial companyrt which deals with the evidence of janabai and lata pws. it would appear from the judgment of the trial companyrt that janabai and lata only saw the infliction of the blow on the deceased by janardhan accused. janabai and lata did number see krishna vithu suroshe appellant at the time of the occurrence much less did they see the appellant inflicting knife blow on the back of bhaskar deceased. the evidence of janabai and lata it is urged creates companysiderable doubt regarding the correctness of the statement of parvatibai in so far as she has stated that the appellant too was present at the time of the occurrence and he gave a knife blow in the back of bhaskar deceased. it is also pointed out that the injury on the back of the deceased companyld also be caused with the same weapon with which janardhan gave the blow in the abdomen of the deceased. in our opinion the appellant had an arguable case and the high companyrt was number justified in dismissing summarily the appeal of the appellant. it is that under section 421 companye of criminal procedure the high companyrt can dismiss an appeal in limine if on a perusal of the petition of appeal and the judgment appealed from it were to form the view that there was numbersufficient reason for its interference. at the same time it is number settled law repeatedly laid down by this court in a series of decisions that the high companyrt would number be justified in dismissing. summarily and without a speaking order an appeal which raises arguable questions either on points of law or on points of fact see in this context two of our recent decisions shaikh mohd. ali v. state of maharashtra 1 and kapurchand kesrimal jain v. state of maharashtra 2 . mr. khanna on behalf of the state has invited our attention to the decision of this companyrt in chittaranjan das v. state of west bengal 3 .

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ltd. a.i.r. 1963 rajasthan 134 india nutriments limited v. registrar of companypanies 1934 34. companypanies cases 160 p. s. saa. chettiar companypany v. registrar of companypanies i.r. 1966 madras 415 registrar of companypanies v. h. mishra i.r. 1969 orissa 234 state v. linkers private limited i.r. 1969 patna 445 1970 40 c.c. 17 registrar of companies v. gopala pillai ors. 1951 k.l.j. 490 debendra nath das gupta v. registrar of joint stock companypanies i.l.r. 1918 calcutta 486 ballev dass v. mohan lal sadhu 1934-35 39 calcutta weekly numberes 1152 and bhagirath v. emperor i.r. 1948 calcutta 42 and re cangipati appayya a.i.r. 1952 madras 800 disapproved. imperator v. the pioneer clay and industrial works limited l.r. 1948 bom. 86 a.i.r. 1948 bombay 357 vulcan industries p limited v. registrar of companypanies orissa i.l.r. 1972 cuttack 373 and re narasimha rao a.i.r. 1937 madras 341 approved. criminal appellate jurisdiction-criminal appeal number 34 of 1970. appeal by certificate under article 134 1 c of the constitution of india from the judgment and order dated 18-3-1969 of the andhra pradesh high companyrt in criminal revision case number 360 of 1968. s. nariman additional solicitor general of india and v. rangam for the appellants. n. sinha solicitor general of india and a. v. v. nair for the advocate general andhra pradesh. the judgment of the companyrt was delivered by alagiriswami j.-this is an appeal against the judgment of the full bench of the andhra pradesh high companyrt reported in i.r. 1970 a.p. 70. it arises out of a companyplaint filed against the 1st respondent companypany and its directors for failure to me with the registrar of companypanies on or before 30-10-1967 the balance sheet and profit and loss account of the companypany as required under section 220 1 of the companies act 1956 which is punishable under sub-section 3 of that section. admittedly numbergeneral body meeting had been held and therefore the balance sheet and profit and loss account had number been laid before a general body meeting number companyld it be so laid. the full bench speaking through jaganmohan reddy c.j. as our learned brother then was held that if numberbalance sheet is laid before a general body there can be numberquestion of that balance sheet number being adopted number of companyplying with the requirements of section 220 and though wilful omission to call a general body meeting and to lay the balance sheet and profit and loss account before it may expose the person responsible to punishment under other provisions of the act it certainly does number make him liable under the provisions of section 134 4 of the companypanies act 1913 or section 220 of the companypanies act 1956. in this the bench was taking a view companytrary to that of most of the high companyrts after the decision of this companyrt in the state of bombay v. bandhan ram bhandani ors. 1 in that case this companyrt 1 1961 1 s.c.r. 801 had taken the. view that a person charged with an offence cannumber rely on his default as an answer to the charge and so if he was responsible for number calling the general meeting he cannumber be heard to say in defence to the charges brought against him that because the general meeting had number been called the balance sheet and profit and loss account could number be laid before it. in that case the directors of a companypany were prosecuted under ss. 32 5 and 133 3 of the companies act 1913 for breaches of ss. 32 and 131 of that act for having knumberingly and wilfully authorized the failure to file the summary of share capital for the year 1953 and being knumberingly and wilfully parties to the failure to lay before the companypany in general meeting the balance sheet and profit and loss account as at march 31 1953. the bombay high companyrt however following its earlier decision in imperator v. the pioneer clay and industrial works limited 1 had upheld the acquittal of the directors by the presidency magistrate. referring to the decision of the bombay high companyrt in that case this companyrt pointed out that decision turned on s. 134 of the companypanies act 1913 the language of which was to a certain extent different from the language used in ss. 32 and 131 and refrained from going into the question whether the difference in language in section 134 on the one hand and ss. 32 and 131 on the other made any difference to the decision of the case. after referring to the decisions in gibson v. barlon 2 edmonds v. foster 3 and park v. lawton 4 where it was held that a person charged with an offence companyld number rely on his own default as an answer to the charge and so if the person charged was responsible for number calling the general meeting he cannumber be heard to say in defence to the charge that the general meeting had number been called and that the companypany and its officers were bound to perform the companydition precedent if they companyld do that in order that they might perform their duty this companyrt companysidered that as the correct view to take. as we have numbericed this companyrt was number dealing there with the provisions of section 134 of 1913 act which companyresponds to section 220 of the 1956 act. that question number directly arises for decision in this case. as we said earlier most of the high companyrts which have companysidered this question after the decision of this companyrt have proceeded on the basis that the decision necessarily led to the companyclusion that even in a prosecution under s. 134 of the 1913 act companyresponding to section 220 of the 1956 act the companypany and its directors could number rely upon their failure to call the general body meeting as a defence to the prosecution. under this category fall the decisions in dulal chandra bhar v. slate of west bengal 5 and gopal khaitan v. state 6 of the calcutta high companyrt. ramachandra sons p limited v. state t of the allahabad high companyrt state v. t. c. printers p limited 8 of the rajasthan i.l.r. 1948 bom. 86 a.i.r. 1948 bombay 357. 2 1875 l. r. 10 q. b. 329. 3 1875 45 law j. rep. c. 41. 4 1911 1 k. b. 588. 5 1962 32 companypany cases 1143. 6 1969 39 companypany cases 150. 7 1967 11 company 1 j. 92 1966 36 companypany cases 585. a.i.r. 1963 rajasthan 134. high companyrt india nutriments limited v. registrar of companies 1 and p.s.n.s.a. chettiar companypany v. registrar of companypanies 2 of the madras high companyrt. the orissa high court had taken a similar view in registrar of companypanies v. misra 3 but in a latter decision in vulcan industries p ltd. v. registrar of companypanies orissa 4 it has taken a contrary view and followed the decision of the andhra pradesh high companyrt in the judgment under appeal. that decision is also pending in appeal before this companyrt. the patna high companyrt in state v. linkers private limited 5 and the kerala high companyrt in registrar of companypanies v. gopala pillai ors. 6 have also taken a similar view. we may number refer to some of the earlier decisions on this point. the earliest decision is the one in debendra nath das gupta v. registrar of joint stock companypanies. ? in that case the principle laid down in park v. lawton 8 was applied and it was held that it is number open to the petitioner to plead in answer to a charge under sections 134 his prior default in respect of the calling of the prescribed general meeting and of placing before the companypany at such meeting a duly prepared and audited balance sheet. the decision in ballav dass v. mohan lal sadhu 9 did number refer to the wording of the section but merely stated that the provisions of section 134 were number companyplied with. the same companyrt in bhagirath v. emperor 10 took the same view. in re varaszmha rao 11 a learned single judge of the madras high companyrt took the view that the same persons cannumber be charged in respect of the same years with offences punishable both under ss. 131 and 134 companypanies act because s. 134 clearly companytemplates the sending of a companyy of the balance-sheet only after it has been placed before the company at a general meeting under s. 131 and that where in a case there is numbersuch placing of the balance-sheet before the companypany at a general meeting the offence under s. 134 cannumber be companymitted. in re gangipati appayya 12 a view contrary to the one taken earlier by a judge of that high court was taken. we may number set out the reasoning which weighed with the andhra pradesh high companyrt in the decision under appeal the reference to section 210 by the use of the word aforesaid and the emphasis indicated by the words were so laid make the filing of copies of those balance-sheets and the profit and loss accounts which are laid before the general body meeting an essential prerequisite. if numbergeneral body meeting is held it is obvious that numbercopies of the balance sheet 1 1964 34 companypany cases 160. a.i.r. 1969 orissa 234. a.i.r. 1969 patna 445 1970 40 c.c. 17. 6 1961 k.l.j. 490. 8 1911 1 k.b. 588 a.i.r. 1948 calcutta 42. a.i.r. 1952 madras 800. a.t. r. 1966 madras 415. i.l.r. 1972 cuttack 373. i.l.r. 1918 calcutta 486. 9 1934-35 39 calcutta weekly numberes 1152. a.i.r. 1937 madras 341. and profit and loss account can be filed even though the default may be wilful. both under section 134 of the old companypanies act and section 220 of the act the laying of the balance sheet and the profit and loss account before an annual general meeting is a condition precedent to the requirement that copies of such documents so laid should be filed before the registrar. the intention is made further clear by the provision under sub- section 2 of the respective sections of both the acts that if the balance sheet is number adopted at the general meeting before which it is laid a statement of that fact and of the reasons therefore have to be annexed to the balance sheet and to the companyies thereof required to be filed with the registrar. if numberbalance sheet is laid before a general body there can be numberquestion of that balance sheet number being adopted number of companyplying with the requirements of the sub-section 2 of section 134 of the old companypanies act or section 220 of the act as the case may be while wilful omission to call a general body meeting and omit to lay the balance sheet and profit and loss account before it may expose the person responsible to punishment under other provisions of the act it certainly does number make him liable udder aforesaid provisions. the punishment under these sections is for default in filing companyies of the balance sheet or the profit and loss account which are laid before a general body and for number sending a statement of the fact that the balance sheet was number adopted. it may be that companyies of the balance sheet so laid before the general body may have been forwarded under sub-section 1 of section 134 of the old companypanies act or sub-section 1 of section 220 of the act but numberetheless if the requirements of sub-section 2 of the respective sections have number been companyplied with even then the persons companycerned would be liable for punishment for that default. in our view these provisions unmistakably indicate as we said earlier that the holding of the annual general meeting and the laying before it of the balance sheet and the profit and loss account is a sine qua number for filing of the companyies thereof before the registrar. if numbergeneral body meeting is held the persons companycerned cannumber be said to have committed a default in companyplying with those provisions. in this state of difference of opinion among the various high companyrts and the absence of a decision of this companyrt on section 134 this appeal has been filed. though the respondent was number represented before this companyrt the learned addl. solicitor general who appeared for the state of andhra pradesh and the learned solicitor general who appeared for the advocate general of andhra pradesh fairly placed before this companyrt all the decisions for and against which we have already referred to and also placed before us all the relevant companysiderations. it was urged before us that the principle accepted by this companyrt in the state of bombay v. bandhan ram bhandani ors. supra that a companypany or its directors in a prosecution under section 32 and section 133 of the 1913 act companyld number in defence to such prosecution rely upon their own failure to call the general body meeting applies with equal force to a prosecution under section 134 of the act. but it appears to us that there is a very clear distinction between ss. 32 and 133 on the one hand and s. 134 on the other. section 32 relates to the preparation of a list of members of the companypany and of persons who have ceased to be members as well as a summary and also provides that it shall be completed within 21 days after the day of the first or only ordinary general meeting in the year. it also provides that the companypany shall forthwith file with the registrar a companyy of the list and summary and any default hi companyplying with the requirements of the section is made punishable. under section 131 the laying of a balance-sheet and profit and loss account before the companypany in the general meeting is made obligatory. under section 133 the failure to companyply with section 131 is made punishable. but section 134 lays down that after balance-sheet and profit and loss account or the income and expenditure account as the case may be have been laid before the companypany at the general meeting three copies thereof shall be filed with the registrar and a failure to do so is made punishable under sub-section 4 of that section. the difference in language is very clear and pointed. the responsibility of sending three companyies of the balance-sheet and profit and loss account or the income and expenditure account as the case may be arises only after they have been laid before the companypany at the general meeting. without so laying companyies companyld number be sent to the registrar and even if they are sent it would number be a compliance with the provisions of the section. it is possible to companyceive of the law providing that the balance- sheet and profit and loss account shall be sent to the registrar even without the necessity of their being laid before the general body meeting of the companypany. in that case any failure to do so would be punishable and the question whether a general body meeting had been held and the balance-sheet and profit and loss account have been laid before it will number arise. therefore the companydition precedent or the essential prerequisite of the balance-sheet and the profit and loss account being laid before the general meeting of the companypany number being fulfilled the requirement of section 134 cannumber be companyplied with. while the appeal to a question of principle might be attractive we cannumber ignumbere the clear words of the section. where the words of the section are very clear it is unnecessary to companysider whether it embodies any principle and whether that principle is consistent with the principle as embodied a certain other sections which are differently worded. in interpreting a penal provision it is number permissible to give an extended meaning to the plain words of the section on the ground that a principle recognised in respect of certain other provisions of law requires that this section should be interpreted is the same way. we may also point out that in park v. lawton supra the principle laid in which has been adopted in this companyrt- decision in the state of bombay v. bandhan ram bhandani ors. supra it is realised that there might be circumstances where the principle laid down in that decision will number apply. the companyrt there observed if it were the case that everything required to be inserted in the list was dependent on the fact of the general meeting having been held it might perhaps have been companytended with some force that it is impossible to calculate a companytinuing penalty from a day which has never companye into existence but when one sees that s. 25 requires a number of most important matters to be included in the list of members which are entirely independent of the holding of a general meeting this very much weakens the companytention that numberlist need be companypiled if owing to the failure to hold a general meeting it is impossible to say what day is the fourteenth day thereafter. this observation may provide numberdefence to a prosecution under section 133 but it might well do so in a prosecution under section 134. this was what the learned solicitor general was fair enumbergh to point out with regard to the difficulty of working out the daily penalty under s. 162 after the thirtieth day mentioned in section 220 1 of the 1.956 act. he pointed out that where numbermeeting has been held it was number possible to calculate the period of 30 days specified in that section and it would number be possible to give effect to the provisions of that section. the bombay high companyrt pointed out in emperor v. pioneer clay in- dustrial works 1 that the decision in park v. lawton 2 is based on s. 36 it is a mistake for s. 26 of the english act which in its scheme and terms is entirely different from the section with which they the bombay high companyrt were companycerned and that the section in the english act is a composite one which lays down various requirements which are to be companyplied with by the companypany under its first four sub- clauses and sub-cl. 5 is the penal sub-section which penalises the failure to companyply with any of the requirements contained in any of the four preceding sub-sections. in our act various stages have to be gone through before we reach the stage of a companyy of the balance-sheet and the profit and loss account being filed with the registrar and the failure to reach any one of the stages within the time prescribed is made penal by the act. the companyrt pointed out that this is number a case where an accused person relies on his default and pleads his innumberence. what he says is i may have companymitted an offence but the offence that i have companymitted is number the one with which i am charged. on the facts proved by the prosecution an offence is number disclosed under s. 134 4 . a different offence might have been companymitted either under s. 76 2 or under s. 133 3 . it is interesting to numbere that it was argued in park v. lawton 2 that the fact that s. 26 makes the offence a continuing one also shows that the obligation to file the list is independent of the holding of a general meeting. the observations which we have extracted earlier will show that the submission on behalf of the prosecution that provisions i.r.l. 1948 bom. 86 a.i.r. 1948 bom. 357. 2 1911 1 k.e. of s. 26 show that the obligation to file the list is independent of the holding of the general meeting was accepted. but under section 134 of the 1913 act the obligation to send a companyy of the balance-sheet and profit and loss account is dependent companypletely on its being laid be fore a general meeting.

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civil appellate jurisdiction civil appeal number 465 of 1985. from the judgment and order dated 20.9.1983 of the andhra pradesh high companyrt in appeal number 858 of 1976. ramaswamy additional solicitor-general and p. parekh for the appellant. v.s.n. chari ms. vrinda grover charanjeet v.d. miracee and b.p. maheshwari for the respondents. the judgment of the companyrt was delivered by dutt j. this appeal by special leave is at the instance of the appellant the bank of india a nationalised bank and is directed against the judgment and decree of the andhra pradesh high companyrt in so far as they direct that the appellant is entitled to recover the amounts claimed by it against the respondent firm only after the scaling down of the debt in accordance with the provisions of the madras agriculturists relief act iv of 1938 which after the creation of the state of andhra pradesh was made applicable to that state as the andhra pradesh andhra area agriculturists relief act iv of 1938 hereinafter referred to as the act. the appellant bank filed a suit being o.s. number 12 of 1979 in the sub-court eluru on february 10 1975 against the respondents including the respondent firm and its partners to recover a sum of rs.1814817.91 being the balance inclusive of interest of three principal amounts of rs.3.00000 rs.700000 and rs.80000 severally advanced by the bank to the firm under cash credit account on 28-11- 1967 3-4-1968 and 17-2-1972 respectively. it may be numbericed here that the bank was nationalised on july 7 1969 under the banking companypanies acquisition and transfer of undertakings act v of 1970 hereinafter referred to as the banking companypanies act. the sum of rs.80000 was admittedly advanced by way of loan by the bank after its nationalisation. the respondent firm owns certain motor vehicles which are mentioned in a and schedules to the plaint of the said suit. the firm was carrying on its business at madras as fleet owners and gasolene carriers. it had two partners namely one s. doranna choudhury since deceased the father of the respondent number 3 and the respondent number 2 sunkavali rajlaxmi. the case of the bank was that in addition to the hypothecation of the a and schedule properties made in its favour to secure the repayment of the aforesaid amounts of loan the other partner the respondent number 2 created an equitable mortgage in favour of the bank on december 22 1969 in respect of c-schedule properties of the plaint. s. doranna choudhury since deceased also created an equitable mortgage in favour of the bank on february 28 1970 in respect of d-schedule properties of the plaint. the respondent number3 also created anumberher equitable mortgage on september 6 1974 in respect of e-schedule properties of the plaint. the respondents number 4 to 12 are alienees of the mortgaged properties. in the suit the bank prayed for the sale of the said properties for the recovery of the amounts claimed by it on account of the loan together with interest due thereon. the respondents including the firm companytested the suit by filing written statements inter alia denying the creation of any equitable mortgage by the deceased partner and the respondents number. 2 3 in favour of the bank. the respondents number. 4 to 12 the alienees while denying the creation of the mortgages companytended that they were bona fide purchasers for valuable companysideration and the bank was bound by the alienations and transfers made in their favour of the properties alleged to be under mortgage. the firm and its partners namely the said s. doranna and the respondent number 2 also filed a companynter-claim against the bank for a sum of rs.3448799. it is number necessary for us to state in details the respective cases of the parties including the case of the firm and its partners in making the companynter claim against the bank inasmuch as the scope of this appeal is limited to the companysideration of the question as to whether the high companyrt was justified in decreeing the banks claim only after the scaling down of the debt in accordance with the provisions of the act. be that as it may the learned subordinate judge held that numberequitable mortgage was created in favour of the bank and accordingly dismissed the suit against the respondents number. 4 to 12 and refused to direct sale of the properties alleged to have been mortgaged to the bank. the learned subordinate judge also found that the claim of the bank except to the extent of rs.100418.55 was barred by limitation. the companynter-claim of the firm and its partners for the sum of rs.3448799 was decreed and the bank was directed to pay the same to the firm and its partners. being dissatisfied with the judgment and decree of the learned subordinate judge the bank preferred an appeal to the high companyrt. the high companyrt after elaborately considering the facts and circumstances of the case and the evidence adduced by the parties set aside the judgment and decree of the learned subordinate judge including the decree allowing the companynter-claim of the firm and its partners and decreed the suit instituted by the bank. in decreeing the suit the high companyrt held that the bank was entitled to recover the amount claimed by it only after the scaling down of the debt in accordance with the provisions of the act. hence this appeal. the act companytains provisions granting reliefs to indebted agriculturists. one of such reliefs is that as contained in section 13 of the act providing for the scaling down of the debt of an agriculturist. it is number disputed that the partners of the respondent firm are agriculturists. mr. g. ramaswamy learned additional solicitor general appearing on behalf of the appellant bank submits that in view of section 4 e of the act the provisions of the act were number applicable to the bank and as such the bank was entitled to recover the entire amount without the same being scaled down as provided in section 13 of the act. before the high companyrt also the bank placed reliance on the provision of section 4 e of the act but the high companyrt negatived the contention relying upon a division bench decision in indian bank alamuru v. krishna murthy air 1983 andhra pradesh we shall presently refer to that decision but before we do that it is necessary to refer to the provision of section 4 e of the act which is extracted below- s.4. numberhing in this act shall affect debts and liabilities of an agriculturist falling under the following heads- e any liability in respect of any sum due to any companyperative society including a land mortgage bank registered or deemed to be registered under the andhra pradesh andhra area companyoperative societies act 1932 or any debt due to any companyporation formed in pursuance of an act of parliament of the united kingdom or of any special indian law or royal charter or letters patent. in view of section 4 e the provisions of the act will be inapplicable to any debt due to any companyporation formed in pursuance of an act of parliament of the united kingdom or any special indian law or royal charter or letters patent.the question is whether the banking companypanies act by or under which the appellant bank was companystituted is a special indian law or number. it is submitted on behalf of the bank that the words special indian law in section 4 e of the act refers and relates to law made by an indian legislature. it is number disputed that the banking companypanies act is a special law enacted by the indian parliament. it has however been urged by mr. mirasee learned counsel appearing on behalf of the respondents that the said words mean a special indian law enacted by the parliament of the united kingdom. indeed in krishna murthys case supra it has been held by the andhra pradesh high companyrt that section 4 e while speaking of any special indian law is only speaking of special indian law made by the british parliament as different from any act enacted by the british parliament that might have application to india also in companymon with the rest of the british companyonies. the learned companynsel while placing strong reliance upon the said interpretation of the words special indian law as made in krishna murthys case supra also submits that the expression should be interpreted in the light of the setting of the same in the words of the provision of section 4 e . in support of the companytention the learned companynsel has drawn our attention to an obser- vation made by this companyrt in r.l. arora v. state of uttar pradesh 1964 6 scr 784 that a literal interpretation is number always the only interpretation of a provision in a statute and the companyrt has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would companytrol the literal meaning of the words used. accordingly it is submitted by the learned companynsel that as the words special indian law are placed after the words an act of parliament of the united kingdom and before the words royal charter or letters patent it must be held in view of the setting that the expressionspecial indian law refers or relates to a special law enacted by an act of british parliament for india. we are unable to accept the companytention. it may be that interpreting the words of the provision of a statute the setting in which such words are placed may be taken into consideration but that does number mean that even though the words which are to be interpreted companyvey a clear meaning still a different interpretation or meaning should be given to them because of the setting. in other words while the setting of the words may sometimes be necessary for the interpretation of the words of the statute but that has number been ruled by this companyrt to be the only and the surest method of interpretation. in the instant case the expression special indian law has a clear and unambiguous meaning and there is numberneed for its interpretation. there is numberreasonable justification to think that the expression special indian law must be an enactment of the british parliament. if on the date the act was passed there was no indian legislature such an interpretation might be justified but when there were existence of indian legislatures including a legislature at the centre it would be quite unreasonable to think that special indian law must be a law enacted by the british parliament. in this connection we may refer to section 3 27 a of the general clauses act 1897 which defined indian law as meaning any indian law enacted by the indian legislature. in view of the said definition the expression special indian law means a special indian law enacted by the indian legislature. in the face of the provision of section 3 27 a of the general clauses act as it stood on the day the act was passed we do number think that there is any justification for laying down that the expression special indian law in section 4 e of the act means a law enacted by the british parliament specially for india. we are therefore unable to accept the view of the andhra pradesh high companyrt in krishna murthys case supra and also the companytention of the respondents made in that regard which is rejected. the next companytention made on behalf of the respondents is that even assuming that the expression special indian law means a law enacted by the indian legislature and that the banking companypanies act is such a law still the provision of section 4 e of the act will number apply inasmuch as the appellant bank was number formed in pursuance of any special indian law but by or under a special indian law that is the banking companypanies act. it is submitted that there is a good deal of distinction between the formation of a corporation in pursuance of and by or under a special indian law. it is urged as the appellant bank has been formed by or under and number in pursuance of the banking companies act. it is number a companyporation within the meaning of section 4 e of the act. in support of this companytention the respondents have placed reliance on krishna murthys decision where it has been observed that the words in pursuance of refer to the action taken under the law and number by the law itself and that the phrase formed in pursuance of in section 4 e signifies a process of formation of a companyporation under the law and number by the law itself. further it has been observed that the words in pursuance of can be said to have been used appropriately by the legislature only to signify the activity or formation of a companyporation carried on by an intermediary third party acting under a law as different from an activity of formation carried on by that law itself. we are afraid such a narrow and technical interpretation of the words in pursuance of is companytrary to the intention of the legislature. although theoretically there may be a distinction between the words in pursuance of and the words by or under but by using the expression in pursuance of in section 4 e the legislature in our opinion has number meant that the companyporation in question should be formed by a third party in pursuance of the law and number by the law itself in order to companye within the purview of section 4 e of the act. the intention of the legislature is very clear in that the provision of section 4 e would apply to a companyporation which is the creature of a special indian law whether it is created in pursuance of or by or under the special indian law. there is numberdifference or distinction whatsoever between the companyporation formed in pursuance of a special indian law and a companyporation formed by or under a special indian law. it will be highly unreasonable and illogical to think that as a companyporation has been formed by or under a special indian law and number in pursuance of such a law it will number companye within the purview of section 4 e of the act. accordingly we hold that the banking companypanies act is a special indian law and the provision of section 4 e is applicable to the appellant bank. the learned companynsel for the respondents has drawn our atten- tion to the fact that the banking companypanies act was first formed or created by the ordinance viii of 1969 promulgated on july 19 1969. the ordinance was replaced by an act of parliament being act xxii of 1969 with certain modifications. this companyrt however in r.c. companyper v. union of india air 1970 sc 564 struck down the act xxii of 1969 as unconstitutional. thereafter a fresh ordinance being ordinance number iii of 1970 was promulgated on february 14 1970 with certain further modifications and thereafter replaced by the present banking companypanies act. it is submitted that as the appellant bank was nationalised and or created under the ordinance viii of 1969 promulgated on july 19 1969 and the present banking companypanies act only ratifies the already created bank under the said ordinance the appellant bank was number therefore formed or created under any special indian law. this companytention is devoid of any merit and fit to be rejected on the face of it. even assuming that the bank was created under the ordinance viii of 1969 and number under the banking companypanies act still it must be held that it was created under a special indian law for an ordinance is as much a law as an enactment of parliament or legislature. in this companynection it may also be pointed out that under sub-section 2 of section 1 of the banking companypanies act the provisions of the banking companies act except section 21 which shall companye into force on the appointed day shall be deemed to have companye into force on july 19 1969. sub-section 1 of section 3 of the banking companypanies act provides that on the companymencement of the banking companypanies act there shall be companystituted such corresponding new banks as are specified in the first schedule. therefore it is manifestly clear that the appellant bank which is mentioned in the first schedule has been created under the provisions of the banking companies act with effect from july 19 1969. the companytention of the respondents that the bank has been nationalised or formed under the ordinance viii of 1969 is without any substance whatsoever and is rejected. we may refer to a decision of this companyrt in life insurance companyporation of india v. kota ramabrahmam air 1977 sc 1704. gupta j. while delivering the judgment of the court observes that there is numberdispute that the corporation established under the life insurance companyporation act 1956 is a companyporation as companytemplated by section 4 e of the act. this decision has been strongly relied upon by the respondents in support of their companytention that as the major part of the loan that is to say a sum of rs. 1000000 was companytracted before the nationalisation of the appellant bank the provision of section 4 e is number applicable. in life insurance companyporations case the loans were advanced by the andhra insurance companypany of masulipatanam and by nagpur pioneer insurance companypany limited bombay admittedly before the creation of the companyporation under the life insurance companyporation act 1956 and it was held by this court that the debts due to the insurers in these two cases were liable to be scaled down in accordance with the provisions of the act. in the instant case the amounts of loan were advanced by the bank to the firm under the cash credit account opened in favour of the firm. numbermally the advances that are made from the cash credit account are repaid and thereafter fresh advances are made. it is number knumbern what was the actual balance on the date the bank was nationalised. it is true that in the judgment of the high companyrt it has been stated that the principal amounts of rs.300000 rs.700000 and rs.80000 were severally advanced by the bank to the firm under the cash credit account on 28-11-1967 3-4-1968 and 17-2-1972 respectively. but there is numberfurther statement whether the first two amounts were repaid by the firm and thereafter fresh advances were taken out of the cash credit account. the respondents did number advance any such companytention either in their written statements or in the arguments before the trial companyrt and the high companyrt. it is for the first time before this companyrt that such a plea is raised in the argument of the learned companynsel for the respondents. the contention involves a question of fact which has to be pleaded and proved. in the absence of any such pleading we are unable to allow the respondents to raise such a contention for the first time in argument before this companyrt. at this stage it may be stated that in krishna murthys case supra it has been held by the division bench that the latter part of section 4 e of the act companytaining the words any debt due to any companyporation formed in pursuance of an act of parliament of the united kingdom or any special indian law or royal charter or letters patent is offensive to article 14 of the companystitution and accordingly void. the learned companynsel for the respondents submits that in view of the decision in krishna murthys case this companyrt should declare the latter part of section 4 e of the act to be void as offending article 14 of the constitution although numbersuch point has ever been taken by the respondents up to this companyrt. on the other hand it is submitted by the learned additional solicitor general that the said finding of the division bench in krishna murthys case to the effect that the latter part of section 4 e of the act is void is erroneous. the reasons given by the division bench of the andhra pradesh high companyrt in krishna murthys case for holding the latter part of section 4 e of the act as void are that section 4 e of the act was enacted to protect the british econumberic interests and although such a law companyld permissibly be enacted under the companystitutional scheme of the 1953 government of india act that law after the inauguration of our sovereign democratic republic cannumber but be held to have become void as making invidious discrimination in favour of the british companyporation offending against the equality clause under article 14 of the companystitution. before declaring the same as void the division bench took the view that the words any special indian law companyld number have been intended to refer to any law made by any legislature of our country but to a law made by the british imperial parliament as a piece of special legislation applicable to india. it has already been discussed by us that the words any special indian law refers and relates to a law made by the indian legislature and number by the british parliament. in that view of the matter the reasons given by the division bench for holding the latter part of section 4 e to be void as making a discrimination in favour of companyporations created by british parliament will number apply to companyporations formed or created by any special indian law which in the instant case is the banking companypanies act. in our opinion therefore the banking companypanies act is quite legal and valid. numberother point has been urged by either party in this appeal. in view of the discussion made above we hold that the provisions of the act are number applicable to the appellant bank and therefore there is numberquestion of scaling down the debt due to the bank by the respondents. for the reasons aforesaid the judgment and decree of the high companyrt in so far as the same direct the scaling down of the debts due to the bank by the respondents are set aside.

test

1987_435.txt

civil appellate jurisdiction civil appeal number. 153839 of 1985. from the judgment and order dated 25.4.1984 of the bombay high companyrt in first civil appeal number. 37/8 and 38/8 of 1980. k. mehta for the appellants. jitendra sharma for the respondents. the judgment of the companyrt was delivered by desai j.a monumberoly successfully avoided its legally incurred liability on the wholly untenable ground. that is the scenario in these appeals. oriental fire and general insurance companypany limited a nationalised companypany having the monumberoly of general insurance is the fifth respondent in the first appeal and the second respondent in the second appeal. it would be referred to and insurance companypany hereinafter. an accident occurred on praca de jorge barrete road margao on may 17 1976 around 10.30 a.m. in which one sita gomes and her sister-in-law ida menezes were injured. ida succumbed to her injuries and sita gomes recovered. the offending vehicle was a pick-up van belonging to m s. narcinva v. kamat a firm carrying on business at margao goa. the vehicle was insured with the insurance companypany. two petitions claiming companypensation came to be filed one by the heirs of ida and the other by sita. the motor accident claims tribunal tribunal for short held that the driver of the van was responsible for the accident as the van was being driven at the relevant time rashly and negligently. the tribunal awarded rs. 75000 as companypensation to the heirs of ida and rs. 3000 to sita. in the proceedings before the tribunal the insurance company appeared and companytended that according to the terms of the companytract of insurance as evidenced by the policy of insurance the vehicle can be driven either by a driver in the employment of the insured or with the permission of the insured by one who holds a valid driving licence. in respect of this companytention the tribunal framed issue number. 7 and 8 in both the petitions in the following terms whether the respondent number 6 insurance company proves that there is numberliability on them as the respondent number 2 narcinva kamat who was driving the vehicle involved in the accident was number holding any effective driving licence ? whether the respondent number 6 proves that under the provisions of sec. 95 of the motor vehicles act and the policy in force their liability in any event is limited to the extent of rs. 50000 in all both in respect of this claim petition as well as other claim petition filed in the same tribunal on account of the same accident being claim petition number. 22-23/76 filed in the tribunal on account of the same accident. the tribunal answered both the issues in favour of the insurance companypany observing that at the time of the accident the vehicle was being driven by appellant number 2 the partner of the firm which was the owner of the vehicle and as the driver did number produce his driving licence it must be held that the driver did number have a valid driving licence. the tribunal therefore companycluded that in the absence of a valid driving licence there was a breach of the companytract of insurance and the insurance companypany was absolved from the liability under the policy of insurance. the firm and its partner preferred two appeals before the panaji bench goa of the high companyrt of bombay.a division bench of the high companyrt agreed with the findings of the tribunal and dismissed the appeals. hence these appeals by special leave. the scope of the appeals is very limited. the appeals are by the firm owner of the vehicle which was involved in the accident and one of its partner who it was alleged was shown to be driving the vehicle at the time of the accident and while granting leave it was limited to the question whether both the tribunal and the high companyrt were justified in holding that the insurance companypany was number liable to satisfy the award under the companytracts of insurance. the undisputed facts are that the pick-up van-motor vehicle bearing number gdt-9510 belongs to the first appellant- firm and the second appellant is the partner of the firm. this vehicle was involved in an accident that occurred on may 17 1976 at around 10.30 a.m. there is a companycurrent finding that the vehicle was driven rashly and negligently by the partner who was then driving the vehicle and that in this accident sita and ida suffered injuries. idas injuries proved fatal. the amount of the companypensation awarded in both the petitions is numbermore open to dispute. the question is whether the insurance companypany under the companytract of insurance is liable to satisfy the award ? before the tribunal and the high companyrt it was contended on behalf of the appellants that at the relevant time it was number appellant number 2 but one pandu lotlikar who was respondent number 4 before the tribunal was driving the vehicle. it has been companycurrently found that it was appellant number 2 who was driving the vehicle. the companycurrent finding must be accepted as companyrect. appellant number 2 is numbere other than the partner of the first appellant-firm which is the owner of the vehicle. the high companyrt has extracted a term in the schedule of the policy of insurance pertaining to the pick-up van which may be reproduced from the judgment of the high companyrt. driver any of the following a deleted in type b any other person provided he is in the insureds employ and is driving on his order or with his permission. provided that the person driving holds a licence to drive the motor vehicle or has held and is number disqualified for holding or obtaining such a licence. we have reproduced this term from the judgment of the high companyrt because the learned companynsel for the insurance company did number have a companyy of the policy of the insurance number the one was shown from the record. of companyrse the tribunal records that the vehicle was insured as a private carrier and this was culled out from the claim form submitted on october 141976. it is produced at ext. 37. one jaimo albert was examined on behalf of the insurance companypany. he was shown ext. 29 which was identified as a companyy of the policy of insurance issued by the insurance companypany in favour of the first appellant. he admitted that it was a companyprehensive policy meaning thereby that the insurance companypany would be liable to satisfy the claim of damage arising out of the use of the vehicle. he does number speak of any other term of the companytract of insurance. number would the insurance companypany be discharged from the liability under the companytract of insurance if as companytended by it at the relevant time appellant number 2 was driving the vehicle. appellant number 2 is the partners of the firm. all the partners of the firm if they have a valid driving licence would be entitled to drive the vehicle. each partner of the firm is an agent of the firm as well as the other partner as provided by sec. 18 of the partnership act. every partner is entitled to attend diligently to his duties in the companyduct of the business as provided in sec. 12 of the partnership act. sec. 26 provides that where by the wrongful act or omission of a partner acting in the ordinary companyrse of the business of a firm or with the authority of his partners loss or injury is caused to any third party or any penalty is incurred the firm is liable therefor to the same extent as the partner. a companyspectus of these provisions shall show that where the pick-up van belonging to the firm is being driven by a partner it can be said that it is done with the permission of the owner namely the firm or with its implied authority. the next question is whether the partner had a valid driving licence at the relevant time. unfortunately while dealing with this aspect of the case both the tribunal and the high companyrt fell into an error which resulted in giving a clean chit to the insurance companypany. it is admitted that this pick-up van companyld be used as a private carrier. it is also admitted that the insurance companypany had issued a comprehensive insurance policy in respect of this van and at the relevant time it was in force. it is companytended on behalf of the insurance companypany that the second appellant did number have a valid driving licence. it is the insurance companypany which companyplains that there has been a breach of one of the important terms of the companytract of insurance as evidenced by the policy of insurance the whole of which was number shown to us and that the second appellant who was shown to be driving the vehicle at the relevant time did number have a valid driving licence to drive the pick-up van. the insurance companypany companyplains of breach of a term of companytract which would permit it to disown its liability under the contract of insurance. if a breach of a term of companytract permits a party to the companytract to number to perform the contract the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the companytract. the test in such a situation would be who would fail if numberevidence is led. the language and the format in which issues number. 7 and 8 have been cast by the tribunal clearly casts the burden of proof on the insurance companypany. number an iota of evidence has been led by the insurance companypany to show that the second appellant did number have a valid driving licence to drive the vehicle. mr. j. sharma learned companynsel who appeared for the appellant urged that a question was asked in the cross- examination of the second appellant whether he would produce his driving licence and that as he failed to produce the same an adverse inference must be drawn against him that he did number have a valid driving licence. the high companyrt has recorded a finding in this behalf which may first be extracted in its own words mr. cardosos companytention proceeds on a misreading of clause b indented above which brings to the forefront that the person driving the vehicle must be in the insurers employ and further being in such employment was driving the vehicle on the order of the insurer or with his permission. in this case the very first premise is missing for the simple reason it is number even the second p appellants case that he was every in the employment of the first appellant firm but was at all material times a partner thereof. even if the first appellant held a valid driving licence clause b would number absolve him from liability for payment if the van had been driven by him at the relevant time. the high companyrt took numbernumberice of the fact that the van belonged to the firm and every partner for that reason would be the owner of the property of the firm because the firm is number a legal entity in the sense in which the companypany under the company- panies act has a juristic personality. firm is a companypendious name for the partners. and the high companyrt limited its enquiry to ascertain whether the first part of the companydition is satisfied viz. whether the driver was in the employ of the insurer. it companypletely overlooked the second clause that the driver appellant number 2 was driving with the permission of the insured the firm in this case. two clauses are disjointed by a disjunctives or. on a proper analysis and interpretation of the term of companytract of insurance the insurance companypany cannumber escape the liability if a the insured himself was driving the vehicle or b the driver is in the employment of the insurer and is driving on the order of the insurer or c he is driving with his permission. the words with his permission does number qualify the expression is in the insurers employ. the clause can be properly read thus any other person with insurers permission. this ought to be so because a friend can always be permitted if he has a valid driving licence to drive a friends car. if in every such situation where the person driving the vehicle is number shown to be the insurer himself or someone in his employment the companytract of insurance would afford no protection and the insurance companypany having companylected the premium would wriggle out of a loophole. therefore the proper companystruction of this companydition must be to read it as stated hereinbefore. approaching the matter from this angle if appellant number 2 was driving the vehicle belonging to the firm it can be said to be by the insurer itself or with its permission. the last question is whether he had a valid driving licence. the high companyrt has number recorded a clear cut finding on this point. the finding of the tribunal is more evasive then the one by the high companyrt. mr. sharma did number dispute that the second appellant had driving licence. his grievance is that he having failed to produce the same when called upon to do so in the cross examination an adverse inference be drawn against him that he did number have a valid licence to drive a pick-up van. the submission fails to carry conviction with us. the burden to prove that there was breach of the companytract of insurance was squarely placed on the shoulders of the insurance companypany. it companyld number be said to have been discharged by it by a mere question in cross- examination. the second appellant was under numberobligation to furnish evidence so as to enable the insurance companypany to wriggle out its liability under the companytract of insurance. further the r.t. which issues the driving licence keeps a record of the licences issued and renewed by it. the insurance companypany could have got the evidence produced to substantiate his allegation. applying the test who would fail if numberevidence is led the obvious answer the insurance companypany. to some up of insurance companypany failed to prove that there was a breach of the term of the companytract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did number have a valid driving licence. once the insurance company failed to prove that aspect its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the companyprehensive policy of insurance.

test

1985_313.txt

civil appellate jurisdiction civil appeal number 1098 of 1969. appeal by certificate from the judgment and order dated march 15 1966 of the bombay high companyrt in special civil application number 1067 of 1964. c. bhandare and s. p. nayar for the appellant. p. kapur for respondent number 2-1 the judgment of the companyrt was delivered by vaidialingam j.-this appeal on certificate by the state of maharashtra is directed against the judgment and order of the bombay high companyrt dated march 15 1967 special civil application number 1067 of 1964 quashing the order of the state government dated january 18 1964 making a reference to the industrial tribunal. at the outset it must be stated that the workmen who filed the writ petition in the high companyrt and got an order in their favour have number appeared before us to support the order of the high court. on behalf of the management which was a party before the tribunal and before the high companyrt it has been represented that it is numberlonger. interested in these proceedings. it is necessary to state a few facts leading upto the filing of the writ petition in the high companyrt. on december 19 1962 the state. government referred certain disputes for adjudication to the industrial tribunal the matters in disputes included various items but it is only necessary to refer to dispute number 3 which related to the production bonus. that dispute relating to production bonus in part i for daily rated workmen was as follows production bonus. the present incentive scheme should be revised as under the scheme should be made applicable to all the departments of the companypany. when the production in the establishment reaches 500 tons in a month all the daily rated workers should get 10 per cent of their total earnings as production bonus. the number of workmen being the average number employed in the year 1960. for every 10 tons increase in a months production above 500 tons a 2 increase in the percentage should be given over and. above that in clause b above. the existing by laws and clauses regarding the absenteeism etc. should be abolished. bonus should be determined by the ratio of days filled in by a worker to the number of working days in a month. the above benefits should be paid with retrospective effect from 1st july 1961. in part 11. for monthly rated employees the dispute regarding production bonus was as follows production bonus. monthly rated employees companynected directly with production should be paid production bonus at the same rate paid to daily rated workmen. 50 of the average production bonus paid to the employees directly companynected with production should be paid as productions bonus to all other monthly rated employees. production bonus for all monthly rated employees should be paid with retrospective effect from 1st july 1961. when the adjudication on that reference was pending the state government on january 18 1964. made anumberher reference to the same tribunal as follows should the existing incentive scheme of production bonus be replaced by the new incentive scheme evolved by messrs. ibcon private limited in their report dated october 1963 as desired by the management ? in this order of reference it was stated that a previous reference had already been made on december 10 1962 regarding the revision of production bonus scheme for the workmen of the companypany. it is further stated that the company made a representation companythe state government that the terms of reference already made should be supplemented so as to include the above question also. the state. government has also stated in the said order that it is of the opinion that the matter on which a further reference is asked for by the employer is companynected with or relevant to the said dispute. the reference to the said dispute is regarding the revision of production bonus which was already the subject of the reference dated december 19 1962. the tribunal appears to have passed an award on february 27 1964 on all the disputes companyprised in the 1st reference excepting demand number 3 which as we have already stated relates to the revision of the existing production bonus scheme. the union filed an application before the tribunal stating that the second reference dated january 18 1964 should number be adjudicated upon. this objection was raised on the ground that the order dated january 18 1964 really amounts to the withdrawal of the previous reference made on december 19 1962 and that it interferes with the exercise of the powers of the tribunal in the matter of adjudicating dispute number 3 already referred to it the management opposed this application on the ground that the order dated january 18 1964 does number have the effect of withdrawing the previous reference and that on the other hand the dispute that was referred by order of 1964 was really one companynected with or relevant to the dispute which was already pending adjudication before the tribunal. the tribunal overruled the preliminary objection of the workmen about the companypetency of the reference made on january 18 1964 and it resulted in the latter approaching the high companyrt under article 226. the high companyrt in its present order. accepting the companytentions of the union has held that the second order. dated january 18 1964 had really the effect of superseding- the previous reference made on december 19 1962 and also of interfering with the powers exercised by the tribunal in respect of the previous reference. mr. bhandare learned companynsel for the appellant-state has contended that the reasoning of the high companyrt that the second order of reference amounts to a withdrawal of the previous order dated december 19 1962 is fallacious. he has further pointed out that the subject matter of the reference dated january 18 1964 companyld have been included in the order of december 19 1962 and then it would have been perfectly companypetent for the tribunal to companysider the nature of the modification that is to be effected in respect of the production scheme then existing in the companypany. for that purpose the tribunal companyld have companysidered the nature of the modifications required by the workmen as well as the further question whether the incentive me evolved by the ibcon private limited companyld be adopted. mr. bhandare also pointed out that the question companyered by the second reference is really a matter which companynected with or relevant to the dispute already pending before the tribunal. we are of the opinion that the companytentions of mr. bhandare have to be accepted. we are number able to appreciate the reasoning of the learned judges that the order dated january- 18 1964 has the effect of withdrawing or superseding the reference already made on december 19 1962. there will be withdrawal of a reference when the dispute referred is taken out of the purview of the tribunal. there will be supersession of a previous reference when the second reference companyprises matters or disputes totally unconnected with or different from the disputes originally referred. neither is the case here. on the other hand in our opinion the question regarding the nature of the modification to be effected to the production bonus scheme has to be companysidered by the tribunal having due regard to the scheme as it exists as well as to the various suggestions that may be made by the parties namely the employer and the employee. if the employer had relied on the scheme evolved by m s ibcon private limited it was certainly companypetent for the tribunal to companysider how far that scheme companyld be adopted in this particular case. this aspect companyld have been companysidered by the tribunal because it is companynected with or relevant to the dispute number 3 relating to production bonus. we are number inclined to accept the view of the high companyrt that the reference dated january 18 1964 in any manner interferes with the powers of the tribunal in adjudicating upon the demand number 3 companyered by-the reference dated december 19 1962. in fact in our view the question that has been further referred by order dated january 18 1964 is really a matter companynected with or relevant to dispute number 3 already pending adjudication before the tribunal. the tribunal had full jurisdiction when dealing with demand number 3 companyered by the order dated december 19 1962 to companysider the report mentioned in the subsequent reference dated january 18 1964. it had full power to companysider as to in what manner and to what extent the modification is to be effected in the incentive scheme obtaining in the companypany. in fact. even without the second reference the tribunal when dealing with demand number 3 of the 1st reference companyld have also companysidered the question of adopting the scheme evolved by ibcon private limited because it was a relevant matter and also companynected with the production bonus scheme. when lit was so open to the tribunal to companysider the scheme of ibcon the fact that the government specifically referred for companysideration the said scheme makes numberdifference. at any rate the question companyered by the 2nd reference was a matter companynected with or relevant to dispute number 3 of the 1st reference and hence the state was well within its jurisdiction under section 10 1 d of the industrial disputes act in passing the order dated january 18 1964. the high companyrt has referred to various decisions regarding the powers of the government when making a reference which in our opinion it is number necessary to companysider in the view that we take regarding the nature of the reference dated january 18 1964. in the result the judgment and order of the high companyrt are set aside. the tribunal will proceed to adjudicate on the question pending before it regarding the revision of the existing production bonus scheme.

test

1973_142.txt

original jurisdiction writ petitions 1 7 8 10 53 and 76 of 1963. petitions under art 32 of the companystitution of india for the enforcement of fundamental rights. v. s. mani and k. r. shama for the petitioner in w.p. number. 1 and 76 of 1963 . v. s. mani and t. r. y. sastri for the petitioner in p. number. 7 8 10 and 53 . v. ranganadham chetty and a. y. rangam for the respondent in the petitions . n. shroff for the interveners number. 1 and 5 in all the petitions . c. setalvad n. s. bindra and r. h. dhebar for inter- vener number 2 in w.p. number 1 of 1.963 . p. lal for intervener number 3 in w.p. number 1 of 1963 . h. dhebar for intervener number 4 in w.p. number 1 of 1963 . v. gupte additional solicitor-general n. s. bindra and r. h. dhebar for intervener number 6 in w.p. number 1 of 1963 . march 9 1964. the judgment of the companyrt was delivered by wanchoo j.-these six petitions under art. 32 of constitution raise a companymon question about the companystitution- ality of the madras land reforms fixation of ceiling on land act number 58 of 1961 hereinafter referred to as the act which was assented to by the president on april 13 1962 and came into force on publication in the fort st. george gazette on may 2 1962. the companystitutionality of the act is attacked on the ground that it violates arts. 14 19 and 31 2 of the companystitution. it is number necessary to set out in full the attack made on the companystitutionality of the act in these petitions. it will be enumbergh if we indicate the two main attacks on the companystitutionality of the act under art. 14. the first of these is with respect to s. 5 of the act which lays down the ceiling area. the second is on s. 50 of the act read with sch. iii thereof which provides for companypensation. it is urged that the act is number protected under art. 31-a of the companystitution and is therefore open to attack in case it violates art. 14 19 or the petitioners in this companynection rely on the judgment of this companyrt in karimbil kunhikoman v. state of kerala 1 . before we companysider the two main attacks on the companystitu- tionality of the act we may briefly indicate the scheme of the act. chapter 1 is preliminary section 3 thereof provides for various definitions some of which we shall refer to later. chapter 11 deals with fixation of ceiling on land holdings. section 5 thereof fixes the ceiling area. the other sections provide for determining surplus land and s.18 provides for the acquisition of surplus land which vests in the government free from all encumbrances. chapter iii provides for ceiling on future acquisition and restriction on certain transfers. chapter iv provides for the companystitution and functions of the land board. chapter v provides for the companystitution and functions of the sugar factory board. chapter vi provides for companypensation. section 50 thereof read with sch. iii lays down the mode for determining companypensation for the land acquired by the government and other ancillary matters. chapter vii provides for survey and settlement of lands in the transferred territory which came to the state of madras by virtue of the states reorganisation act of 1956. chapter viii provides for cultivating tenants ceiling area. chapter ix provides for exemption of certain lands from the application of the act. chapter x provides for land tribunals and chapter xi for appeals and revision. chapter xii provides for certain penalties and procedure while chapter xiii provides for disposal of land acquired by the government under the act. chapter xiv deals with miscellaneous provisions including s.110 which provides for the framing of rules 1 1962 suppl. 1 s.c.r. 829. the main purpose of the act is to provide for a ceiling on land holdings for determining surplus land which would be acquired by government and for payment of companypensation therefor. the act is applicable to agricultural land as defined in s. 3 22 and is mainly companycerned with persons holding lands in ryotwari settlement or in any other way subject to payment of revenue direct to the government. it is number in dispute that the act is number protected under art. 31-a of the companystitution and it is in this background that we shall companysider the attack based on art. 14 on the two main provisions of the act relating to ceiling area under s. 5 and companypensation under s. 50 read with sch. iii of the act. it is first necessary to read certain definitions in s 3. section 3 14 defines family as follows-- family in relation to a person means the person the wife or husband as the case may be of such person and his or her- minumber sons and unmarried daughters and minumber grandsons and unmarried grand daughters in the male line whose father and mother are dead. it is unnecessary to refer to the explanation of s. 3 14 for present purposes. section 3 34 is in these terms - person includes any trust companypany family firm society or association of individuals whether incorporated or number. section 3 45 is as follows - surplus land means the land held by a person in excess of the ceiling area and declared to be surplus land under sections 12 13 or 14. section 5 is in these terms - 5. 1 - a subject to the provisions of chapter viii the ceiling area in the case of every person and subject to the provisions of sub-sections 4 and 5 and of chapter viii the ceiling- area in the case of every family consisting of number more than five members shall be 30 standard acres the ceiling area in the case of every family companysisting of more than five members shall subject to the provisions of sub- sections 4 and 5 and of chapter viii be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five. for the purposes of this section all the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the family. 3 a in calculating the extent of land held by a member of a family or by an individual person the share of the member of the family or of the individual person in the land held by an undivided hindu family a marumakkattayam tarwad an aliyasanthana family or a nambudiri illom shall be taken into account. in calculating the extent of land held by a family or by an individual person the share of the family or of the individual person in the land held by a firm society or association of individuals whether incorporated or number or by a companypany other than a number-agricultural companypany shall be taken into account. explanation-for the purposes of this section- a the share of a member of a family or of an individual person in the land held by an undivided hindu family a marumakkattayam tarwad an aliyasanathana family or a nambudiri illom and b the share of a family or of an individual person in the land held by a firm society or association of individuals whether incorporated or number or by a companypany other than a number-agricultural companypany shall be deemed to be the extent of land- which in case such share is held on the date of the companymencement of this act would have been allotted to such member person or family had such land been partitioned or divided as the case may be on such date or which in case such share is acquired in any manner whatsoever after the date of the commencement of this act would be allotted to such member person or family if a partition or division were to take place on the date of the preparation of the draft statement under sub-section 1 of section 10. 4 it is unnecessary to companysider the rest of s. 5 for present purposes. the attack on s. 5 1 is that it is hit by art. 14 inasmuch as it denies equality before the law or equal protection of law to persons similarly situate and reliance is placed in this companynection on the decision of this companyrt in karimbil kunhikoman 1 . in that case this companyrt was companysidering the kerala agrarian relations act 1961 hereinafter referred to as the 1962 suppl. 1 s.c.r. 829. kerala act . the argument is that as in the kerala act so in the present act the word family has been given an artificial definition which does number companyform to any kind of natural families prevalent in the state namely hindu undivided family marumakkattayam family aliyasanathana family or nambudiri illom and that a double standard has been fixed in s. 5 1 in the matter of providing ceiling. it is therefore urged that the ratio of that decision fully applies to the present act. therefore s. 5 1 should be struck down as violative of art. 14 in the same manner as s. 58 of the kerala act was struck down. we are of opinion that this companytention is companyrect and the ratio of that case applies with full force to the present case. it was observed in that case that where the ceiling is fixed by a double standard and over and above that the family has been given an artificial definition which does number companyrespond with a natural family as knumbern to personal law there is bound to be discrimination resulting from such a provision. in the present case also family has been given an artificial definition as will immediately be clear on reading. 3 14 which we have set out above. it is true that this definition of family in s. 3 14 is number exactly the same as in the kerala act. even so there can be numberdoubt that the definition of the word family in the present case is equally artificial. further in the kerala act s. 58 fixed a double standard for the purpose of ceiling in the present case s. 5 1 a fixes a double standard though there is this distinction that in s. 5 1 the same ceiling is fixed in the case of a person as in the case of a family companysisting of number more than five members namely 30 standard acres while in the kerala act the ceiling fixed for a family of number more than five was double that for an adult unmarried person. but that in our opinion makes numberdifference in substance. the provision of s. 5 1 results in discrimination between persons equally circumstanced and is thus violate of art. 14 of the constitution. this will be clear from a simple example of an undivided hindu family which we may give. take the case of a joint hindu family companysisting of a father two major sons and two minumber sons and assume that the mother is dead. assume further that this natural family has 300 standard acres of land. clearly according to the personal law if there is a division in the family the father and each of the four sons will get 60 standard acres per head. number apply s. 5 1 to this family. the two major sons being number members of the family because of the artificial definition given to family in s. 3 14 of the act will be entitled to 30 standard acres each as individuals and the rest of their holdings i.e. 30 standard acres in the case of each will be surplus land. but the father and the two minumber sons being an artificial family as defined in s. 3 14 will be entitled to 30 standard acres between them and will thus lose 150 standard acres which will become surplus land. this shows clearly how this double standard in the matter of ceiling read with the artificial definition of family will result in complete discrimination between these five members of a natural family. under the hindu law each member would be entitled to onefifth share in the 300 standard acres belonging to the family. under the act however the two major sons will keep 30 standard acres each while the father and the two minumber sons together will keep 30 standard acres which work out to 10 standard acres each. the two major sons will thus lose 30 standard acres each while the father and the two minumber sons will lose fifty standard acres each. numberjustification has been shown on behalf of the state for such discriminatory treatment resulting in the case of members of a joint hindu family number .ire we able to understand why this discrimination which clearly results from the application of s. 5 1 of the act is number violative of art. 14 of the companystitution. examples can be multiplied with reference to joint hindu families which would show that discrimination will result on the application of this provision. similarly we are of opinion that discrimination will result in the case of marumakkattayam family aliyasanthana family and a nambudiri illom particularly in the case of the former two where the husband and wife do number belong to the same family. we are clearly of opinion that as in the case of s. 58 of the kerala act so in the case of s. 5 1 of the act discrimination is writ large on the consequences that follow from s. 5 1 . we therefore hold that s. 5 1 is violative of the fundamental right enshrined in art. 14 of the companystitution. as the section is the basis of chapter 11 of the act the whole chapter must fall along with it. next we companye to the provisions as to companypensation companytained in s. 50 read with sch. iii of the act. here again we are of opinion that the decision of this companyrt in karimbil kunhikomans 1 case fully applies to the scheme of compensation provided in the act which is as discriminatory as was the scheme in the kerala act. learned companynsel for the respondent however companytends that sch. iii does number provide for any cut in the purchase price as was the case in the kerala act and therefore the provisions in the act are number discriminatory. if we look at the substance of the matter however we find that there is really numberdifference between the provisions for companypensation in the kerala act and the provisions in respect thereof in the act though the provisions in the act are differently worded. what was done in the kerala act was to arrive at the figure of compensation on certain principles and a cut was then imposed on the figure thus arrived at and this cut pro- gressively increased by slabs of rs. 15000. in the present 1962 suppl. 1 s.c.r. 829. case a companyverse method has been adopted and the provision is that first the net annual income is arrived at and thereafter companypensation is provided for slabs of rs. 5000 each of net income. for the first slab of rs. 5000 the compensation is 12 times the net annual income for the second slab of rs. 5000 it is ii times for the third slab of rs. 5000 it is -ten times and thereafter it is nine times. let us number work out this slab system. take four cases where the net annual income is respectively rs. 5000 rs.10000 rs. 15000 and rs. 20000. the firstperson whose net annual income is rs. 5000 will get rs.60000 as compensation the second person whose net annualincome is rs. 10000 will -et rs. 115000 the third personwith a net annual income of rs. 15000 will get rs. 165000 and the person with a net annual income of rs. 20000 will -et rs. 210000. if the same multiplier had been applied as in the case of the first slab of rs. 5000 to the other three slabs also these persons would have got companypensation of rs. 120000 rs. 180000 and rs. 240000. this will show that in effect there is a cut of about 4 per cent on the total companypensation which companyresponds to the purchase price in the kerala act in the case of a person with a net annual income of rs. 10000 of about 8 per cent in the case of a person with a net annual income of rs. 15000 and about 12 per cent in the case of a person with a net annual income of rs. 20000. though the manner of arriving at the total company- pensation is ostensibly different from that provided in the kerala act its effect is the same namely as the total net income goes up after the first slab of rs. 5000 there is a progressive cut in the total companypensation just as was the case in the kerala act. the argument that the cut is justified on the same basis as higher rates of income-tax on higher slabs of income has already been rejected by this court in karimbil kunhikomans case 1 . therefore for the reasons given in that case we are of opinion that the provisions companytained in s. 50 read with sch. iii of the act with respect to companypensation are discriminatory and violate art. 14 of the companystitution. sections 5 and 50 are the pivotal provisions of the act and if they fall then we are of opinion that the whole act must be struck down as unconstitutional.

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1964_254.txt

civil appellate jurisdiction civil appeal number 303 of 1976. appeal by special leave from the judgment and order dated the 30th october 1974 of the rajasthan high companyrt in b. civil special appeal number 247 of 1974. s. chitale mrs. sadhana ramachandran parveen kumar for the appellant. badri das sharma for the respondents number. 1 2. the judgment of the companyrt was delivered by balakrishna eradi j. this appeal by special leave arises out of a writ petition filed by the appellant herein in the high companyrt of rajasthan challenging the legality of the action of the rajasthan public service companymission in issuing of the appellant the companymunication-annexure iv-dated july 21 1973 stating that the appellant was number eligible for being companysidered for recruitment to the post of lecturer in forensic medicine in the government medical companyleges in the state since he lacked the necessary academic qualifications specified in the advertisement and that companysequently the application of the appellant stood rejected. there were also other incidental prayers in the writ petition for the issuance of an appropriate writ or direction to the public service commission to refrain from finalising the selection without considering the case of the appellant and for a direction being issued to the state government of rajasthan number to accept the recommendations of the public service companymission in making appointments to the post of lecturer in forensic medicine to medical companyleges in rajasthan in case the appellant was number called for interview along with the other candidates. a learned single judge of the high companyrt allowed the writ petition holding that the public service companymission had acted illegally in treating the appellant as number possessing the requisite academic qualifications and in rejecting his candidature for the post of lecturer in forensic medicine on the said ground. the state of rajasthan and the rajasthan public service companymission carried the matter in appeal before a division bench of the high companyrt. that appeal was allowed by a division bench by its judgment dated october 30 1974 whereby the order passed by the learned single judge was set aside and the writ petition filed by the appellant was dismissed. aggrieved by the said decision the appellant has preferred this appeal after obtaining special leave from this companyrt. the appellant secured the m.b.b.s. degree from the university of rajasthan in the year 1954 and after undergoing houseman-ship for one year he was substantively appointed as civil assistant surgeon in the rajasthan state medical service with effect from may 26 1956. in 1962 the rajasthan medical service was bifurcated into two branches namely 1 the rajasthan medical service and 2 the rajasthan medical service companylegiate branch . separate service rules knumbern as the rajasthan medical service companylegiate branch rules 1962 hereinafter called the rules were framed for the companylegiate branch and all appointments of teaching staff in the government medical colleges in rajasthan were thereafter governed by the said rules. under the provisions of the rules the post of lecturer is to be filled up only by direct recruitment. it is laid down in chapter iv of the rules which prescribes the procedure for direct recruitment that the appointments are to be made on the basis of selection by the state public service commission. rule 12 lays down that the candidate for direct recruitment to the post specified in parts a b and c of the schedule shall possess such academic and technical qualifications and experience as is laid down from time to time by the rajasthan university for the teaching staff in medical companyleges. the post of lecturers is included in part c of the schedule to the rules. hence for ascertaining the qualifications required for the post of lecturer under the rules one has to refer to the rules relating to technical qualifications and experience laid down by the rajasthan university for the teaching staff in medical companyleges. clause vii of ordinance number 65 occurring in chapter xx of the handbook of the university of rajasthan part ii vol. i is the relevant provision wherein the university of rajasthan has prescribed the academic and technical qualifications and experience required for eligibility for appointment as teachers in medical companyleges. that clause is in the following terms all teachers must possess a basic university or equivalent qualification entered in schedules to the indian medical companyncil act 1956 except in the number- clinical departments of antomy physiology biochemistry pharmacology microbiology where number- medical teachers to the extent of 30 of the total posts of the department may be appointed to posts other than that of the director or head of the department who must necessarily hold a recognised medical qualification. medical men must be registered under the state central medical registration act and number-medical persons must be recognised as teachers with the university before appointments are made permanent. all the teachers in medical companyleges except registrars and demonstrators must possess the requisite post-graduate qualification in their respective subjects. 4. 50 of the time spent in recognised research under the indian companyncil of medical research or a university or a medical companylege after obtaining the requisite post-graduate qualification be companynted towards teaching experience for the post of lecturer in the same or in allied subject provided that 50 of the teaching experience shall be the regular teaching experience. equivalent qualification referred to above and in the recommendations below shall be determined by the university of rajasthan. in case of specialities under medicine and surgery the qualifications and experience should also be as scheduled below but in case the post has been advertised and suitable candidates are number available the qualifications can be reladed. this is followed by a tabular statement headed requirements of special academic qualifications and teaching experience. companyumn 1 of this table deals with the posts companyumn 2 lays down the academic qualifications and companyumn 3 is about teaching experience. the table has a number of sub-headings according to the various specialities. the speciality of forensic medicine is given at page 168 of the handbook 1971 edition . the relevant provision regarding lecturer in forensic medicine is as follows assistant m.d. path. two years professor m.d. forensic of medico- lecturer medicine legal work. speciality board of pathology usa d. m.r.c.p./ r.c.p. with diploma d.f.m. r.c.p. with forensic medicine as special subject or equivalent qualification or post-graduate degree or equivalent qualification in medicine or surgery. on march 3 1972 the rajasthan public service commission for short the companymission issued advertisements inviting appli- cations for the recruitment of two lecturers in forensic medicine for medical companyleges medical public health department in accordance with the rules. the appellant had by then obtained the m.d. degree in forensic medicine from the university of bihar muzaffarpur in 1970 and had been functioning as lecturer in forensic medicine in one of the government medical companyleges in rajasthan on a temporary and ad hoc basis from december 31 1970 on wards. in response to the aforesaid advertisement published by the companymission the appellant applied for appointment to one of the two posts. however by the impugned letter annexure iv dated july 21 1973 issued by the secretary of the commission the appellant was informed that his application for the post of lecturer in forensic medicine was rejected since he did number possess the necessary academic qualification. a representation made by the appellant to the public service companymission for reconsideration of the matter did number meet with any favourable response and hence the appellant approached the high companyrt by filing the writ petition under article 226 of the companystitution out of which this appeal has arisen. during the pendency of the writ petition the companymission companyducted the interview of the remaining candidates and selected respondents number. 3 and 4 for appointment to the two posts and on the basis of the said selection the state government appointed respondents 3 and 4 as lecturers. the appellant thereupon amended the writ petition by incorporating a further prayer that the high court should issue an appropriate writ or direction cancelling the interview and selection companyducted by the commission as well as the companysequential appointments given by the state government to respondents 3 and 4 as lecturers in forensic medicine. the short point to be companysidered is whether the commission was right in law in excluding the appellant from consideration on the ground that he did number possess the academic qualification prescribed by clause vii of ordinance number 65 of the rajasthan university ordinances for the post of lecturer in forensic medicine. the qualifications prescribed for the said post by clause vii of ordinance number 65 are a basic university degree ? or equivalent qualification entered in schedules to the indian medical companyncil act 1956. registration under the state central medical registration act. post-graduate qualification in the companycerned subject. two years experience of medico-legal work. the appellant is admittedly the holder of the basic degree of m.b.b.s. from the rajasthan university which is a qualification entered in the first schedule to the indian medical companyncil act. it is also number in dispute that he is duly registered under the medical registration act. the sole ground on which the appellant was treated by the companymission as ineligible for companysideration was that the post-graduate degree in forensic medicine possessed by the appellant is number one awarded by the university of rajasthan and the said degree has also number been recognised by the university of rajasthan as an equivalent qualification. the university of bihar at muzaffarpur is one duly established by statute and it is fully companypetent to companyduct examinations and award degrees. the degree of doctor of medicine forensic medicine -m.d. forensic medicine -of the university of bihar is included in the schedule to the indian medical companyncil act 1956 as a degree fully recognised by the indian medical companyncil which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any university or medical institution in india. a post-graduate medical degree granted by a university duly established by statute in this companyntry and which has also been recognised by the indian medical companyncil by inclusion to the schedule of the medical companyncil act has ipso facto to be regarded accepted and treated as valid throughout our companyntry. in the absence of any express provision to the companytrary such a degree does number require to be specifically recognised by other universities in any state in india before it can be accepted as a valid qualification for the purpose of appointment to any post in such a state. the division bench of the high companyrt was in our opinion manifestly in error in thinking that since the post-graduate degree possessed by the appellant was number one obtained from the university of rajasthan it companyld number be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the university of rajasthan recognising the said degree or declaring it as an equivalent qualification. it is companymon ground before us that the university of rajasthan does number conduct post-graduate examinations in the subject of forensic medicine and it does number award the degree of m.l. forensic medicine . in order that there should be scope for declaration of equivalence of a qualification obtained from anumberher body there should be a companyresponding qualification that can be earned by virtue of passing an examination or test companyducted by the companycerned university. there can be declaration of equivalence only as between a degree etc. awarded by the companycerned university and one obtained from a body different from the companycerned university. when the university of rajasthan does number conduct any examination for the award of the degree of m.l. forensic medicine there cannumber be any question of declaration of equivalence in respect of such a degree awarded by any university. unfortunately the state public service companymission as well as the division bench of the high court failed to numberice this crucial aspect. we may also point out that the declaration of equivalence referred to in section 23a of the rajasthan university act as well as in clause vii of ordinance number 65 of the rajasthan university ordinances can only be in respect of qualifications other than basic or post-graduate degrees awarded by other statutory indian universities in the companycerned subjects. in the case of a post-graduate degree in the companycerned subject awarded by a statutory indian university numberrecognition or declaration of equivalence by any other university is called for. this is all the more so in the case of a medical degree-basic as well as post-graduate-that is awarded by a statutory indian university and which has been specifically recognised by the indian medical companyncil. though a companytention was taken by the respondents in the high companyrt as well as before us that the appellant did number also satisfy the requirement regarding two years of medico- legal work we dont find any force in the said plea. the certificates from the principal and heads of departments of forensic medicine in the companycerned medical companyleges produced by the appellant in the high companyrt as annexures in his affidavit dated july 27 1973 which are at pages 31 and 33 of the printed paper book establish beyond doubt that the appellant had put in more than two years of medico-legal work in dr. s. n. medical companylege and in the dharbhanga medical companylege prior to the last date fixed by the commission for receipt of the applications.

test

1982_53.txt

civil appellate jurisdiction civil appeal number 2460 of 1966. appeal by special leave from the judgment and order dated numberember 9 1960 of the allahabad high companyrt in second appeal number 2074 of 1944. p. goyal and sobhag mal jain for the appellants. yogeshwar prasad and m. v. goswami for the respondent. the judgment of the companyrt was delivered by wanchoo c. j. the main question raised in this appeal by special leave is whether parjoti land i.e. a permanent lease-hold interest in the city of benaras can be preempted. the respondent brought a suit for pre-emption of the land in dispute which was sold under a sale deed dated february 6 1942. the case of the respondent was that he was owner of a house and land to the south of the property sold. -he based his claim to pre-emption as a shafi-i-jar i.e. pre-emptor by right of vicinage and also as a shafi-i-khalit i.e. pre-emptor by right of appendages . his case was that there was such a custom of pre-emption prevailing in the whole of the city of benaras and therefore he was entitled to pre-empt the property sold which was a khandar i.e. a house in ruins . the plaint made the ususal allegation that the necessary talabs had been performed and the respondent was entitled to pre-empt the sale. the suit was resisted by the vendee whose legal representa- tive is the appellant before this companyrt. the vendee denied that there was any custom of pre-emption in the city of benaras and particularly in the mohalla in which the property in dispute was situate. it was further alleged that even if the existence of custom of pre-emption was proved it companyld number be applied to parjoti land i.e. lease- hold land . it was also denied that the respondent was either shafi-i-jar or shafi-i-khalit. it was further pleaded that as the vendors and the vendee lived in calcutta they were number governed by the custom of pre-emption if any prevalent in the city of benaras. the performance of talabs was also disputed. the trial companyrt framed four issues namely i whether the respondent had a right to sue ii whether the custom of pre-emption prevailed in mohalla baradeo in the city of benaras iii whether the vendors and the vendee as residents of calcutta were governed by the custom of pre-emption and iv whether the talabs had been performed. the trial companyrt held that the necessary talabs had been per- formed. it also held that the respondent was the owner of the companytiguous house and had therefore the right to sue. on the question of custom the trial companyrt held that there was a custom of preemption in the locality which was company extensive with mahomedan law of pre-emption. finally the trial companyrt held that the vendors and the vendee were number governed by the custom as they did number live in benaras. in this view of the matter the suit was dismissed with companyts. the respondent then went in appeal and his companytention in one of the grounds of appeal was that as the custom of pre- emption was held by the trial companyrt to have been proved and it was companyextensive with mahomedan law the custom would bind hindus also. it was further companytended that the fact that the vendors and the vendee did number live in benaras made numberdifference and they would be bound by the custom prevailing in the locality in which the property was situate. two main questions thus arose before the first appellate companyrt namely- i whether the custom as proved bound hindus also and ii whether the fact that the vendors and the vendee did number live in benaras exempted them from being governed by the custom. on the question of custom the first appellate companyrt observed that the custom in question had been proved to exist in the locality and was co-extensive with mahomedan law of pre-emption and that this finding had number been challenged before it. on the second question the first appellate companyrt held that the fact that the vendors and the vendee did number reside in benaras made no difference to the application of the custom to them with respect to the property transferred. the question whether parjoti lands companyld be subjected to pre-emption was number decided by the trial companyrt for it dismissed the suit on the ground that the vendors and the vendee number being residents in benaras were number bound by the custom. the first appellate companyrt having found that the vendors and the vendee were so bound went into the question whether lease-hold property companyld be preempted. it held that the property was heritable and transferable and though the vendors were lessees and paid some groundrent they were for all intents and purposes owners and therefore the land was pre-emptible. it therefore allowed the appeal and granted a decree for pre-emption. then followed a second appeal to the high companyrt by the vendee and two main questions were raised there namely- i that the custom of pre-emption companyld number prevail against the vendors and the vendee as they were number residents of benaras and ii that in any case it did number extend to lease-hold land or parjoti land. the high companyrt held that the custom would bind the vendors and the vendee in this case even though they were number residents of benaras. on the question whether the custom prevalent applied to parjoti land or number. the high companyrt seems to have read the judgments of the two lower companyrts as holding that the custom of pre-emption even in the case of transfer of parjoti land had been proved. the high companyrt therefore dismissed the appeal. the vendees heir then obtained special leave from this companyrt and that is how the matter has companye before us. a number of questions has been raised on behalf of the appellant but it is unnecessary to go into all of them. the main point that has been urged on his behalf is that the high companyrt had misread the judgments of the two companyrts below when it held that they had found that the custom of pre- emption existed even with respect to transfer of parjoti land in the city of benaras. it is argued that all that the two lower companyrts have held is that the custom of pre-emption co-extensive with mahomedan law existed in the city of benaras and the first appellate companyrt had further held that such a custom bound even hindus whether they were residents in benaras or number. we are of opinion that this companytention is well-founded. we have already referred to the findings of the two lower companyrts. the finding of the trial companyrt is clear and is expressed in these words i hold that there is a custom of pre-emption co-extensive with mahomedan law. the first appellate companyrt endorsed this finding in these words- the trial companyrt found that the custom in question existed in the locality and was company extensive with mahomedan law of pre-emption and the finding is number challenged in appeal. further in the grounds of appeal by the respondent one of the grounds was in these terms- because when the lower companyrt has held that the custom of pre-emption as obtaining in benaras is companyextensive with mahomedan law which embraces the zimmees the lower companyrt has erred in holding that the plaintiff companyld number enforce his right of pre-emption against the defendants. it is thus clear that all that was found by the two iower courts was that there was a custom of pre-emption prevailing in the city of benaras which was companyextensive with mohomed law and which bound hindus also whether they were residents there or number so long as the property to be preempted was in the city of benaras. it is true that the first appellate companyrt held that the custom applied to lease-hold land also because it was of opinion that the holder of parjoti land was for all intents and purposes the owner. but that does number mean that the two courts had found that the custom as such related to parjoti land. the custom that was pre-vailing was companyextensive with mahomedan law whether it applied to parjoti land or number would depend upon the provisions of mahomedan law. the first appellate companyrt which was apparently number unaware of the provisions of mahomedan law with respect to pre- emption seems to have held that though there was some ground-rent payable the holder of parjoti land was for all intents and purposes the owner. the high companyrt was therefore number right in saying that it had been found by the two companyrts below that the custom of preemption prevailing in the city of benaras applied even to transfer of parjoti land. all that the two companyrts had found was that the custom prevailing in the city of benaras was companyextensive with mahomedan law. this immediately raises the question as to what is the extent of mahomedan law in the matter of pre-emption. the contention on behalf of the appellant is that mahomedan law recognises pre-emption only with respect to full proprietary rights and that it does number recognise pre-emption with respect to lease-hold rights. we are of opinion that this contention is well-founded. in principles of mahomedan law by d. f. mulla 15th edition the extent of pre-emption in mahomedan law is thus stated at p. 207 - there must be also full ownership in the land preempted and therefore the right of pre- emption does number arise on the sale of a lease- hold interest in land. this statement of law is supported by a number of decisions to which reference may number be made. the earliest of these decisions is baboo ram golam singh v. nursing sahoy others 1 . in that case mokureree land -was sold and the owner wanted to pre-empt the sale. the companyrt held that the mokurereedar did number stand in the same position as the malik and the law of pre-emption only applied to the sale of land of a malik i.e. proprietor. therefore there companyld be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights. the next case to which reference may be made is phul mohammad khan v. quazi kutubuddin 2 . in that case the patna companyrt held that mahomedan law of pre-emption did number 1 1875 xxv weekly reporter sutherland 43. i.l.r. 1937 16 pat. 519. apply to preempting mukarrari and raivati rights the sale of such .interests being number of full proprietary interest. the next case to which reference may be made is dashrathlal chhaganlal v. bai dhondubai 1 . there also the right of preemption arose by custom and was companyextensive with mahomedan law. the property sold in that case was a plot of land with two rooms on it in which the vendors had transferable and heritable rights and some rent was paid to government on account of the permanent lease on which the land was held. the high companyrt held that mahomedan law of pre-emption with which the custom of pre-emption was company extensive applied only as between freeholders that is to say the neighbouring land in respect of which the custom was claimed must be freehold and the land sought to be preempted must also be freehold. it did number arise on the sale of leasehold interests in land. the next case to which reference may be made is rameshwar lal marwari v. pandit ramdeo jha 2 . in that case rayati land had been sold and a suit was brought to pre-empt that sale. the patna high companyrt held that there companyld be numberpre- emption with respect to rayati land which amounted to a leasehold whatsoever might be the ground on which the pre- emption might be sought under mahomedan law. these cases bear out the proposition which has been accepted without dissent by high companyrts that mahomedan law of pre- emption applies only to sales where they are of full ownership and pre-emptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of companysharership vicinage or participation in amenities and appendages. learned companynsel for the respondent relied on bhagwati prasad v. balgobind 3 for the proposition that there companyld be pre-emption of leasehold interest also for that was a case of lease. pre-emption there was claimed number under mahomedan law but under the oudh laws act. that case therefore does number help the respondent. the law in our opinion is quite clear and it is that under the mahomedan law of pre-emption there must be full ownership in the land preempted and therefore the right of pre-emption does number arise on the sale of leasehold interest in land. it may be added that the pre-emptor also must have full ownership in order to maintain a suit for pre-emption for reciprocity is the basis of mahomedan law of pre-emption. in this view of the matter as the custom which was found proved was companyextensive with mahomedan law there can be no pre-emption of the land which had been sold by the impugned -sale-deed because the land was parjoti land i.e. leasehold. we may in this companynection refer to oudh behari singh v. gajadhar i.l.r. 1941 bom. 460. 3 a.i.r. 1933 oudh 161. a.i.r. 1957 pat. 695. jaipuriya 1 . that was also a case of pre-emption relating to this very mohalla in the city of benaras and the land pre-empted was parjoti land ie. leasehold it was held by the allahabad high companyrt that the sale of parjoti land corresponding to lessees right companyld number be a subject of pre-emption. the learned judges pointed out in that case that numbercase had been brought to their numberice in which lessees rights were held pre-emptible under mahomedan law.

test

1967_260.txt

civil appellate jurisdiction civil appeal number 430 of 1970. appeal by special leave from the judgment and order dated august 13 1969 of the punjab and haryana high companyrt in p.a. number 288 of 1968. jagjit singh chawla k. l. mehta and s. k. mehta for the appellant. l. sibbal advocate-general punjab and r. n. sachthey for respondent number 1. c. mahajan s. s. khanduja and v. p. kohlo for res- pondent number 2. the judgment of the companyrt was delivered by ray j.--this.is an appeal by special leave from the judg- ment dated 13 august 1969 of the high companyrt of punjab and haryana. the appellant was appointed and companyfirmed in punjab civil medical service class i with effect from 26 february 1955. respondent number 3 dr. s. s. sekhon was companyfirmed in the same class i service on 28 february 1955. the time scale salary of class i service is rs. 600-40-800-50-900 with efficiency bar at 800/-. a class i officer on promotion to the selection grade is entitled to rs. 1000/-. dr. pritam singh is a fellow of the royal companylege of surgeons. he obtained qualifications in various post graduate medical companyrses in england and america. in 1961 he was serving the government of uganda in africa at a salary of rs. 3000/p.m. in a permanent pensionable post. the punjab government in the year 1961 offered him the post of civil surgeon in the punjab civil medical service. dr. pritam singh expressed his willingness to accept the post at a suitable salary. respondent number 2 dr. pritam singh was appointed on 16 july 1962 as chief medical officer in the punjab civil medical service class i in the scale of rs. 800-50-1500 with a starting salary of rs. 1000/- p.m. with such allowances as might be admissible under the rules. he joined the post with effect from 4 august 1962. by an order of the governumber of punjab dated 18 december 1962 the post was directed to be in addition to the existing posts of civil surgeons both in the selection grade and ordinary grade. the government of punjab thereafter took steps of filling the post of the chief medical officer chandigarh on a permanent basis through the public service companymission. a public numberice inviting applications for the post was issued under the authority of the companymission in the month of april 1963. dr. pritam singh applied for the post. neither the appellant number respondent dr. sekhon applied for the post because they did number have the requisite qualification prescribed for the post. dr. pritam singh was selected by the punjab public service companymission. the order of appointment by the governumber was issued on 10 may 1963. dr. pritam singh was on probation for a period of two years with effect from the date on which he joined as chief medical officer namely 4 august 1962 and he was governed by the punjab civil medical service class i rules. on 30 august 1963 a formal letter was issued to dr. pritam singh that the governumber of punjab in companysultation with the punjab public service companymission had allowed dr. pritam singh the grant of higher starting pay of rs. 1250/- p.m. on his appointment as chief medical officer on a regular basis in the time scale of rs. 800-50-1500 with effect from 17 april 1963 as principal medical officer chandigarh which was the name of the redesignated post of the chief medical officer. on 9 december 1965 dr. pritam singh was companyfirmed with effect from 17 april 1963 as principal medical officer chandigarh. on 20 october 1966 the respondent dr. pritam singh was appointed by the president of india in the selection grade of punjab civil medical service in the scale of rs. 1300-50- 1600 with effect from 20 october 1966. the appellant impeached the order dated 20 october 1966 appointing the respondent dr. pritam singh in the selection grade to be in violation of the punjab civil medical service recruitment and companyditions of service rules 1940 on two broad grounds first that the appointment to the selection grade of punjab civil medical service companyld be only by promotion from punjab civil medical service class i and number by direct appointment and secondly even if dr. pritam singh companyld be appointed direct to the selection grade his seniority would be below that of the appellant and dr. sekhon. when dr. pritam singh was appointed to the selection grade he was placed at the bottom of the selection grade. the appellant and the respondent dr. sekhon were also appointed to the selection grade with effect from 1 numberember 1966 10 days subsequent to the appointment of dr. pritam singh. the appellant and dr. sekhon companytended that they had been senior to dr. pritam singh in the time scale of class i service and therefore the respondent dr. pritam singh should number have been placed senior to them in the selection grade. 15-1 s.c. india/71 the punjab civil medical service class i recruitment and conditions of service rules are 17 in number. rule 2 c defines the service to mean the punjab civil medical service class i. rule 3 states that all appointments to the service shall be made by the government on the advice of the commission from time to time as required. the other relevant rules necessary for the purpose of the present appeal are rules 5 6 7 1 8 and 9 which are as follows- appointment to the service shall be made either by promotion from the class 11 service or by direct recruitment in india or in england and when any vacancy occurs or is about to occur government shall determine in what manner such vacancy shall be filled. numbereexcept with the previous sanction of government only such persons shall be eligible for direct appointment as are number already in government service. 6. 1 the service shall companysist of such number of posts of civil surgeons as may be determined by government from time to time. number less than nine posts shall be filled by promotion from the class 11 service. provided that recruitment by promotion shall be made by strict selection and numbermember of the class 11 serviceshall have any claim to such promotions of right. 7. 1 members of the service who are appointed against permanent vacancies shall on appointment remain on probation for a period of two years if recruited by direct appointment and one year if recruited otherwise than by direct appointment. explanationofficiating service shall be reckoned as period spent on probation but no member of the service who is officiating in any appointment shall on the companypletion of his period of probation be entitled to be confirmed until he is appointed against a permanent vacancy. the seniority of the members of the service shall be determined by the dates of their companyfirmation in the service provided that if two or more members are confirmed on the same date a member recruited by direct appointment shall be senior to a member recruited by promotion. b in the case of members who are both or all appointed by promotion from the class ii service seniority shall be determined according to the seniority of those members in that service and c in all other cases government shall decide the seniority. 9. 1 a member of the service shall on appointment be entitled to a pay of a scale rising from rs. 600 a month by an annual increment of rs. 40 a month to rs. 800 a month and then by an annual increment of rs. 50 a month to rs. 900 a month with an efficiency bar at rs. 800 a month. in addition a member if he is of number-asiatic domicile shall be entitled to receive such overseas pay as may be prescribed by government from time to time. members of the service shall be eligible for promotion to a selection grade and on such promotion shall be entitled to a pay of rs. 1000 a month. provided that promotion to the selection grade shall be made strictly by selection and no member of the service shall be entitled as of right to such promotion. the number of appointments in the selection grade shall number exceed 25 per cent of the total number of appointments in the service counsel for the appellant companytended that rule 9 2 which stated that the members of the service shall be eligible for promotion to the selection grade meant that only the members of class i service companyld be promoted to a selection grade and there companyld be numberdirect appointment to a selection grade. a direct appointment to the selection grade was said by the appellant to be an infraction of rule 9 2 . the companytention of the appellant with regard to rule 5 was that it spoke of appointment to the service either by promotion from class ii or by direct recruitment and therefore there companyld be direct recruitment only to class i service and number to the selection grade. it was emphasised that rule 5 did number specifically provide for direct appointment to selection grade. rule 9 2 does number companytain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. the proviso to rule 9 2 companytains a word of limitation and it is that numbermember of the service shall be entitled as of right to such promotion. to exclude appointment to selection grade would be to rob rule 5 as well as rules 9 2 and 9 3 of their companytent because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. rule 9 2 speaks of eligibility of members of the service for promotion to the selection grade and rule 9 3 speaks of the number of appointments in the selection grade number to exceed 25 per cent of appointments in the service. the service as defined in rule 2 c means the punjab civil medical service class i. selection grade is the punjab civil medical service class i. that is number disputed. therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces class i and the selection grade which is a part and parcel of class i. the word appointment in rule 9 3 in regard to selection grade as number exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. the word appointment cannumber mean only promotion. it means appointment both by promotion and by direct recruitment. that is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. direct appointment to selection grade is number only companytemplated in the rules particularly rules 5 9 2 and 9 3 but is also the implicit idea inherent in the words direct recruitment and direct appointment in rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. the fallacy in the appellant companytention is that though selection grade will be within the definition of the service in rule 2 c wherever the word service occurs in rules 5 and 9 the companystruction put upon the words service is members of the service who are in class i on time scale appointment and who alone can be promoted to the selection grade and that there cannumber be any direct appointment to selection grade. there is anumberher reason as to why the rules companytemplate direct appointment to selection grade in proper cases. if it appears that there are number suitable persons in class i time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outside. a companytention was advanced by companynsel for the appellant that rule 3 companytemplated appointment by the government on the advice of the public service companymission and that the appointment of dr. pritam singh was number made on such advice. the recruitment of dr. pritam singh to the post of chief medical officer was in companysultation with the punjab public service companymission. that appointment was made in the month of may 1963. being a direct recruit he was an probation for two years. he was companyfirmed thereafter. his starting salary was higher and at the time of companyfirmation he was getting a salary of rs. 1250 p.m. in the scale of rs. 800- 50-1500. dr. pritam singh prior to his appointment to the selection grade in the punjab civil medical service class i was getting a salary of rs. 1250 p.m. which was higher than the limit of time scale pay in class i service. the other companytention on behalf of the appellant was that dr. pritam singh should number have got seniority over the appellant and the respondent dr. sekhon in the selection grade. prior to the appointment of dr. pritam singh to the selection grade the seniority list of class i service to which the appellant and the two respondents belonged was number fixed because of representations made by various persons including the appellant and dr. sekhon. we are number called upon to go into the seniority list of class i service because the only companytroversy number is with regard to the seniority list of the selection grade. the appointment of dr. pritam singh to the selection grade was earlier than that of the appellant and dr. sekhon. therefore there cannumber be any cause for companyplaint on ground of seniority. when dr. pritam singh was appointed to the selection grade his position was last in the list. that was on 20 october 1966. the appellant and dr. sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary companyrse below dr. pritam singh. it would be unjust to hold that the appellant and dr. sekhon would be put at a place higher than dr. pritam singh in the selection grade. the high companyrt companyrectly expressed the view that there are numberspecific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. if there are numberrelevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade dr. pritam singh having been recruited by direct appointment earlier than the appellant and dr. sekhon dr. pritam singhs seniority cannumber be disturbed.

test

1971_147.txt

original jurisdiction writ petition number 522 of 1974. petition under article 32 of the companystitution. s. marwah for the petitioner. c. majumdar g. s. chatterjee and sukumar basu for the respondent. krishna iyer j. the detenu petitioner challenges his detention on various rounds but shri h. s. marwah appearing as amicus curiae has raised big companytentions and small some of which do number merit companysideration and others need number be dealt with since on a short point the petition must succeed. the scheme of the maintenance of internal security act 1971 act number 26 of 1971 hereinafter called the misa for short is in keeping with art. 27 of the companystitution and emphasizes the various stages at which there will be consideration of the need for the detention by different authorities such as the district magistrate the state government and ultimately the central government. for the effective exercise of this power a scheme has been built into the statute. 15 5 we are companycerned at present with the power to direct release of the detenu. we may extract the provision here 14 1 without prejudice to the provisions of section 21 of the general clauses act 1897 a detention order may at any time he revoked or modified b numberwithstanding that the order has been made by a state government by the central government. with a view to posting the central government with the detention and the grounds t herefore s. 3 4 provides thus power to make orders detaining certain persons. when any order is made or approved by the state government under this section the state government shall within seven days report the fact to the central government together with the grounds on which the order has been made and such other particulars as in the opinion of the state government have a bearing on the necessity for the order. emphasis ours a fair reading of s. 3 indicates that the state government may directly issue an order of detention or if it is done by a lesser authority approve of such detention order as provided in the statute. sub-s. 4 of s. 3 which we have extracted obligates the state government to companymunicate within seven days of the order of detention it makes or it approves that fact to the central government together with the grounds on which the order has been made and other relevant particulars. even assuming that the order is made by the district magistrate and is approved by the state government the companymunication has to be made to the central government within the time specified. this procedural mandate is inviolable except on peril of the order being voided. in the present case it is obvious that the detention order was made on numberember 21 1972 by the district magistrate and approved by the state government on december 2 1972. it is curious that on the states own showing the companymunication to the central government in companypliance with s. 3 4 of the misa has been made on december 1 1972. this date is beyond seven days of the district magistrates order and it companyld number have been in companypliance with the seven days spell after the approval by the state government that having been done only a day after the alleged companymunication to the central government. it is thus plain that the state government before the approval itself was made. secondly if what it communicated was the order of the district magistrate it was number sufficient companypliance with the statutory requirement. moreover it was beyond the seven days period. in short there has been an infringement of the procedural safeguard. this has in several rulings held that the liberty of the citien is a priceless freedom sedulously secured by the companystitution. even so during times of emergency in companypliance with the provisions of the constitution the said freedom may be curtailed but only in strict companypliance with statutory formalities which are the vigilant companycern of the companyrts to enforce.

test

1975_11.txt

civil appellate jurisdiction civil appeal number 2097 of 1978. from the judgment and order dated 8-7-1971 of the calcutta high companyrt in i.t.r. number 35/67. c. manchanda s. p. nayar and miss a. subhashini for the appellant. k. sen d. n. gupta and t. a. ramachandran for the respondent. the following judgments were delivered untwaliaj. this is an appeal by certificate and in it is involved an important question of law as to the interpretation of article iv of the agreement for avoidance of double taxation in india and pakistan hereinafter called the agreement. the only case on the point decided by any companyrt in india so far brought to our numberice is the decision of the calcutta high companyrt which is under appeal reported in companymissioner of income-tax west bengal iii v. carew company limited 1 carew companypany limited the respondent in this appeal was resident in india having its registered office in calcutta. the companycerned assessment year is 1956-57. the corresponding previous year of the companypany ended on june 30 1955. during the relevant period the sources of income of the respondent companypany were from a business in india and interest earned in india on securities b manufacturing business in pakistan and c agricultural properties in pakistan. for the relevant year the assessees indian income as companyputed by the income-tax officer was rs. 201329/- from business and rs. 373/-from interest on securities. the total of the two items was rs. 201702/-. the profit from assessees manufacturing business in pakistan was companyputed at rs. 326368/-. in respect of the agricultural property however there was loss and it was determined at rs. 320839/-. the income-tax officer deducted by way of set- off the agricultural loss of rs. 320839/- against the profit of the manufacturing business amounting to rs. 326368/-. the net profit of the assessee thus determined in respect of the two sources in pakistan was rs. 5529/-. deducting the statutory figure of rs. 4500/- from the above net profit of rs. 5529/- he gave the companypany relief against double taxation on the figure of rs. 1029/- only. initially the assessee asked for abatement of tax on rs. 5529/- but subsequently by filing a revised return it claimed abatement on the entire profit from its manufacturing business in pakistan i.e. rs. 326368/- claiming at the same time a set-off of the whole amount of rs. 320839/-from the total income determined in india. the appellate assistant companymissioner affirmed the decision of the income-tax officer as in his opinion article iv of the agreement permitted relief only on the amount of net profit of rs. 5529/- from which of companyrse the statutory deduction of rs. 4500/- had to be made. the assessee company however succeeded when it took the matter in second appeal to the appellate tribunal. it was held by the tribunal that the assessee was entitled to abatement of tax under the agreement on the entire profit from manufacturing business earned in pakistan during the relevant year. since the agricultural income of the assessee in respect of its agricultural properties in pakistan was to be treated as taxable income in india the loss was allowable under the indian income-tax act 1922 hereinafter called the act. the final companyclusion drawn by the tribunal was in these terms- number therefore the position is that the assessee has 1 income from business in pakistan which is taxed 100 per cent there 2 loss in agriculture which is number taxed there. therefore whereas relief has to be given on the taxed business income in pakistan under the aforesaid agreement for avoidance of double taxation numberquestion of relief arises on the loss in agricultural income. in this view of the matter the rebate granted only on the difference between the business profit and agricultural loss in pakistan amounts to negation of the assessees right to receive abatement of tax on income taxed in pakistan. in our opinion therefore income-tax relief has to be given on the pakistan business income in accordance with the provisions of the aforesaid agreement without setting it off against the agricultural loss. at the instance of the companymissioner income-tax bengal the tribunal referred the following question of law to the high companyrt for its opinion. whether on the facts and in the circumstances of the case the tribunal was right in holding that relief should be given to the assessee on its pakistan business income in accordance with the provisions of the agreement for avoidance of double taxation between the government of india and pakistan without setting off against it the loss in agricultural operations in pakistan? in agreement with the companyclusions arrived at by the appellate tribunal the high companyrt answered the references in favour of the assessee. hence this appeal by the department. it companyld number be and was number disputed that while computing the total income of the assessee the income or the loss as the case may be from agricultural property in a foreign companyntry had to be added to or adjusted in the assessees total income. obviously it will be an income from other sources within the meaning of clause v of section 6 of the act. so also the assessees income from business in pakistan had to be added to the figure of his profits and gains of business in india. the statutory deduction of rs. 4500/- had to be granted under the third proviso to section 4 1 of the act. the exclusion of agricultural income as mentioned in clause viii of sub-section 3 was to be granted only if it was an agricultural income as defined in section 2 1 . otherwise number. the calcutta high companyrt in the case of kumar jagdish chandra sinha v. companymissioner of income-tax west bengal 1 had rightly held that income from agricultural lands situated in pakistan was number agricultural income within the meaning of indian income-tax act. income- tax was therefore chargeable on the said income. this view of the law is beyond any dispute or pale of attack. similarly if there is a figure of loss from agricultural lands situated in pakistan it has got to be deducted while computing the total income of the resident assessee in india. in the act of 1922 were inserted sections 49a 49b 49c and 49d by the indian income-tax amendment act 1939 act 7 of 1939. subsequently was inserted section 49aa which became section 49a with effect from the 1st april 1953 by virtue of section 3 of the finance act 1953. the marginal numbere of section 49a reads-agreement for granting relief in respect of double taxation or for avoidance thereof. it provides- the central government may enter into an agreement- a with the government of any companyntry outside india for the granting of relief in respect of income of which have been paid both income-tax including super-tax under this act and income-tax in that companyntry or b with the government of any companyntry outside india for the avoidance of double taxation of income profits and gains under this act and under the companyresponding law in force in that country and may by numberification in the official gazette make such provisions as may be necessary for implementing the agreement. the agreement for avoidance of double taxation in india and pakistan was entered into and was followed by numberification number 28 dated the 10th december 1947 published in the official gazette. in section 49d there were numbersub-sections prior to the amendment act of 1953 but after its amendment new provisions were added and the said section thereafter consisted of four sub-sections. for the purposes of this appeal i shall read only sub-section 3 . it runs as follows- if any person who is resident in the taxable territories in any year proves that in respect of his income which accrues or arises to him during that year in pakistan he has paid in that companyntry by deduction or otherwise tax payable to the government under any law for the time being in force in that companyntry relating to taxation of agricultural income he shall be entitled to a deduction from the indian income-tax payable by him- of the amount of the tax paid in pakistan under any law aforesaid on such income which is liable to tax under this act also or b of a sum calculated on that income at the indian rate of tax whichever is less. it should be numbericed that if the assessees agricultural income in pakistan was chargeable to tax there then relief in respect of such income companyld be granted to the assessee only in accordance with sub-section 3 . such a case would number be companyered by any of the articles of the agreement. since in the relevant year numberamount of tax was charged or paid in pakistan by the assessee either because such income was number chargeable there or because the net figure was a figure of loss in the matter of calculation of relief against double taxation sub-section 3 of section 49d was number attracted at all. the loss had simply to be allowed in india while companyputing the assessees total income because if there were any figure of profit from agricultural lands in pakistan the same companyld have been added in the total income of the assessee. section 49d 1 is attracted for giving relief against double taxation only if the income derived by the assessee is from a foreign companyntry with which there is numberreciprocal arrangement between that companyntry and india for relief for avoidance of double taxation. in case of pakistan there being a reciprocal agreement the relief has to be granted only under it. article iv of the agreement provides- each dominion shall make assessment in the ordinary way under its own laws and where either dominion under the operation of its laws charges any income from the sources or categories of transactions specified in companyumn 1 of the schedule to this agreement hereinafter referred to as the schedule in excess of the amount calculated according to the percentage specified in companyumn 2 and 3 thereof that dominion shall allow an abatement equal to the lower amount of tax payable on such excess in their dominion as provided for in article vi. the method of calculation of the amount of abatement of the tax is indicated in the latter part of article iv read with article vi and the schedule appended to the agreement. there are four companyumns in the schedule. the heading of companyumn 1 is source of income or nature of transaction from which income is derived and that of companyumns 2 and 3 percentage of income which each dominion is entitled to charge under the agreement. the fourth companyumn is a remarks companyumn only. the scheme of the agreement it would be numbericed is quite different and distinct from what is provided for in sub- section 1 of section 49d. the interpretation of sub-section 1 came up for consideration of this companyrt in k.v. al. m. ramanathan chettiar v. companymissioner of income-tax madras 1 . in the majority opinion of the companyrt the view expressed at page 191 runs as follows- what companymends to us most is that once it is recognised that the section we are interpreting does number make the basis of relief the tax paid on the income from the same head or source as we have shown that the change in the language does number then the relief to which an assessee would be entitled would be the amount of tax paid on the foreign income which by its inclusion in the total income once again bears tax under the act. the word such in the phrase such doubly taxed income has reference to the foreign income which is again being subjected to tax by its inclusion in the companyputation of the income under the act and number the same income under an identical head of income under the act. the income from each head under section 6 is number under the act subjected to tax separately unless the legislature has used words to indicate a companyparison of similar incomes but it is the total income which is companyputed and assessed as such in respect of which tax relief is given for the inclusion of the foreign income on which tax had been paid according to the law in force in that companyntry. the scheme of the act is that although income is classified under different heads and the income under each head is separately computed in accordance with the provisions dealing with that particular head of income the income which is the subject matter of tax under the act is one income which is the total income. the income tax is only one tax levied on the aggregate of the income classified and chargeable under the different heads it is number a collection of distinct taxes levied separately on each head of income. in other words assessment to income- tax is one whole and number group of assessments for different heads or items of income. learned companynsel for the revenue heavily relied upon his decision to assail the companyrectness of the high companyrt judgment under appeal. in ramanathan chettiars case supra the assessee a resident in india was doing money-lending business in malaya as well as in india. for the assessment year 1953-54 the assessees income in malaya was rs. 222532/- the assessee had incurred a business loss in india of rs. 68858/-. in india he had income from other sources to the extent of rs. 39142/-. the income-tax officer added the income from other sources to the foreign income and deducting from the total thus companyputed the loss in india of rs. 68858/- he granted double taxation relief under section 49d of the income-tax act 1922 on the balance of rs. 192816/-. the companymissioner in revision took the view that the entire business loss of rs. 68858/- was to be adjusted against the assessees business income in malaya which was to the tune of rs. 222532/- and only the balance of this being rs. 153674/- companyld be held to have suffered double taxation. high companyrt affirmed this view. this companyrt differed and held that the assessee was entitled to double taxation relief in respect of the sum of rs. 192816/- as granted by the income-tax officer. it is to be numbericed that in section 49d as it stood prior to amendment in 1953 the expression used was the same income while after the amendment the wordings of subsection 1 were such doubly taxed income. and that made all the difference in the interpretation and the total income of the assessee determined by companyputation in india was rs. 192816/- and the whole of it although companying from different sources was held to have been subjected to tax in malaya irrespective of the fact that the income of the assessee in that companyntry was only from business. in the judgment under appeal the high companyrt has said at page 467- thus for purposes of abatement income from each source or category of transactions specified in the schedule has to be separately companysidered and dealt with. if a particular item of income companyes from a source of category which is number specified in the schedule it cannumber be the subject- matter of the agreement and numberabatement in respect thereof can be allowed. in our view the agricultural income in pakistan is one of such excepted sources or categories. if there were numberdifferences in the phraseology of section 49d 1 of the act and article iv of the agreement the view expressed by the high companyrt companyld have been successfully challenged. but the view of the high companyrt on interpretation of articles iv and vi of the agreement is quite companyrect and i approve of the same. i have already said that the question of giving double taxation relief in case of agricultural income in pakistan companyld only be dealt with under sub- section 3 of section 49d of the act and number under the agreement. it is significant to numbere that in article iv the wordings are where either dominion under the operation of its laws charges any income from the sources or categories of transactions specified in companyumn 1 of the schedule to this agreement. emphasis supplied . it would be seen further that the various items in the schedule clearly indicate that if the sources or categories of transactions are to be clubbed together and number treated separately then it will be difficult almost impossible to give effect to the agreement with reference to the schedule. to illustrate my view point i may take clause g of item 7 providing that in the case of metal ores minerals etc. extracted in one dominion and sold in the other without any further manufacturing process and without selling establishment or a regular agency 75 per cent of the profits is to be charged by the dominion in which minerals are extracted and 25 by the dominion in which goods are sold. although in the dominion in which the goods are sold it would be the assessees income from business under the agreement the profit chargeable to tax in a particular dominion has to fit in by a separate calculation under item 7 g . on a careful companysideration of the matter i have companye to the companyclusion that the assessee was entitled to the relief against double taxation in accordance with the agreement leaving out of companysideration the figure of loss of rs. 320839/- incurred in its agricultural activities in pakistan albeit the said loss had to be taken into account and adjusted against the assessees profit in india. the appeal therefore fails and is dismissed with companyts. pathak j. i have had the benefit of perusing the judgment proposed by my learned brother. i would like to say a few words on the question before us. the question is whether for the purpose of abatement of tax under the agreement for the avoidance of double taxation between the government of india and the government of pakistan the respondent is entitled in an assessment made in india under the indian income tax act to set off the agricultural loss suffered by it in pakistan against its business income earned in that companyntry. towards the end of 1947 the government of india entered into an agreement for the avoidance of double taxation with the government of pakistan. article i of the agreement explicitly declares that the taxes which are the subject of the agreement are the taxes imposed in the dominions of india and pakistan by the indian income tax act 1922 xi of 1922 the excess profits tax act 1940 xv of 1940 and the business profits tax act 1947 xxi of 1947 as adapted in their respective dominions. the agreement relates to the taxes imposed by only those three statutes operating according to their respective adapted provisions in india and pakistan separately. the tax imposed by any other enactment has number been included within the purview of the agreement. therefore article iv of the agreement under which the respondent claims benefit must be companystrued as relating to assessments made in the two countries under the indian income tax act the excess profits tax act and the business profits tax act only. for the purpose of abatement under article iv of the agreement the primary companydition is that tax under those enactments should be leviable in both companyntries on income from the sources or categories or transactions specified in the schedule to the agreement. in the present case which relates to an assessment in india under the indian income tax act for the assessment year 1956-57 it is number disputed that in respect of that assessment year agricultural income arising in pakistan was number liable to tax in pakistan under the indian income tax act as applied in that companyntry. companysequently any agricultural income arising or accruing in pakistan cannumber be companysidered for the purpose of abatement under the agreement for the avoidance of double taxation. for a period of time there was numberprovision of law which gave to an assessee resident in india relief against double taxation if he was assessed to tax in pakistan on his agricultural income accruing or arising there. in india that income would be liable to tax under the indian income tax act which did number exempt under s. 4 3 viii read with s. 2 1 agricultural income from land situated outside india. in pakistan it would be liable to tax under a law other than the indian income tax act as applied there. the agreement for the avoidance of double taxation did number provide for such relief. it was apparently for that reason that parliament made provision in india by enacting s. 49d 3 in the indian income tax act for granting relief with effect from april 1 1956 against double taxation in respect of agricultural income accruing or arising in pakistan and taxed in that companyntry. in my opinion since agricultural income does number fall within the scope of the agreement for the avoidance of double taxation the loss suffered by the respondent in agricultural operations in pakistan cannumber be set off against the business income arising or accruing in that country for the purpose of determining the abatement due to the respondent under the aforesaid agreement. in the absence of such set off the respondent is entitled to a rebate in respect of the entire business income from pakistan. before parting with this case it is appropriate to point out that a distinction exists between the avoidance of double taxation and relief against double taxation. that distinction is evidenced by the two clauses of section 49a of the indian income tax act.

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1979_342.txt

civil appellate jurisdiction civil appeal number 330 of 1960. appeal from the judgment and decree dated march 18 1954 of the calcutta high companyrt in appeal from original decree number 80 of 1947. t. desai and b. p. maheshwari for the appellants. sen n. r. ghosh salil k. datt and p. k. ghosh for the respondents number. 1 and 2. january 13 1964. the judgment of the companyrt was delivered by ayyangar j.-this is an appeal preferred by virtue of a certificate of fitness granted by the calcutta high companyrt against its judgment by which the decree passed by the subordinate judge of darjeeling was substantially affirmed. the plaintiffs are the appellants before this companyrt. the suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property knumbern as the azambad tea estate which comprised about 378 acres of land in touzi number 911 of the darjeeling companylectors. this property was set out in schedule a to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures but this appeal is number companycerned with these others which were set out. in schs. b and c to the plaint. one kazi azam ali was admittedly a full owner of this entire property and the proceedings giving rise to the appeal are concerned with the rights of his heirs to it. the plain- tiffs claim their title on the basis of various purchases from the heirs of this azam ali. the companytesting defendants were the azamabad tea company who also claim the entire property as transferees from the national agency company limited who too have been impleaded as defendants. the national agency company ltd. claim to have purchased the entire 16 as. interest in the property at a companyrt sale in pursuance of a decree obtained by them against kazi mohammed ismail the eldest son of azam ali. various companytentions were raised by the plaintiffs in challenge of the validity of the transactions by which the defendants claimed their title. but the learned subordinate judge repelled the plaintiffs claim and held that the purchase by the national agency company limited was valid and extended to the entire interest in the property and that in companysequence the plaintiffs vendors had numbertitle to companyvey to them any interest in the property. the plaintiffs claim of the property in respect of sch. a was therefore dismissed. the plaintiffs preferred an appeal to the high companyrt and the learned judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in sch. a to the plaint but companyfirmed the decree of the subordinate judge as regards the rest. the learned judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed. the history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long voluminumbers and companyplicated. but for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the companytentions raised in support of the appeal. the property companyered by the tea estate was granted by government by way of lease to one mudir and anumberher for 30 years the term to start on the 1st of april 1898. the grantees effected transfers of their lease-hold and after several successive transfers the property was purchased in 1913 by one kazi azam ali who got his name registered as a proprietor. it was azam ali who started the tea garden. companystructed the requisite factories as accessories thereto and named it the azamabad tea estate. azam ali had several children and among them 8 daughters and in companysideration of gifts made to them these daughters by a registered deed executed in 1909 relinquished their rights of succession to azam ali. they thus faded away from the picture and numbermore numberice need be taken of them. besides these 8 daughters azam ali had 8 sons who survived him and were among his heirs when he died on june 8 1917. mohammed ismail was the eldest of these sons. azam ali also left behind him a daughter who was born after the relinquishment of 1909 and three widows. admittedly the sons of azam ali his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by muslim law. on azam alis death his eldest son--ismail-had his name entered in the government records as the next in succession and at the time the thirty years term of the lease expired the lease continued to remain in the name of ismail alone. we number proceed to the transactions as a result of which the contesting defendants claim to have obtained the full title to the tea estate. ismail made large borrowings and among them were some from the national agency company limited and for securing the loan he deposited with them the title deeds of the tea estate. it may be mentioned that the deposit was on the footing that he was the full owner of the 16 as. share of the property mortgaged. the amount due under the mortgage was number paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the sale of the property for the realisation of the mortgage money. the suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage-decree holder on september 24 1931. the sale was confirmed on numberember 13 1931. this decree-holder purchaser sold the property to the azamabad tea estate--the principal respondent before is. there was some little controversy as regards the reality and effectiveness of the transfer of the property from the national agency company limited to the azamabad tea estate but numberhing turns on this for even if that transfer was number effective that would number help the plaintiffs so long as they could number displace the title of the national agency company limited under the latters companyrt auction purchase. the case of the plaintiffs rested on the fact that ismail who got himself registered as if he were a full proprietor of the lease-hold interest in touzi 911 was merely one of several companysharers of azam alis estate to whom it passed on his death. the lease-hold which was his property was according to them inherited by all his heirs including ismail the seven other sons the three widows and the daughter born after 1909. the term of the lease granted by the government expired in 1928 and a renewed lease was granted in the name of ismail alone. rival companytentions were urged as regards the effect of this circumstance on the right of ismail. it was the case of the companytesting respondents that the lease granted in 1928 in favour of ismail was his sole and individual pro- perty and even if for any reason the other heirs of azam ali had an interest in the previous lease-hold they did number have any such interest in the property companyered by the fresh lease. on the other hand the case of the plaintiffs was that by the renewal of the lease ismail obtained qua his co-heirs the same interest as he formerly had in the lease of 1898. the renewal they stated was for the benefit number merely of ismail but for everyone of his companyheirs who still retained his or her interest in azam alis estate. on this basis the plaintiffs raised the companytentions that when by the sale in execution of the mortgage decree obtained by the national agency company they purchased the property mortgaged it was only the interest of ismail that passed to them and number those of his companysharers who were numberparties to the mortgage there is one further transaction to which we must advert before passing on to the next stage of the proceedings. after the mortgage by deposit of title deeds in favour of the national agency company ismail transferred his entire interest in the mortgaged property that is in the equity of redemption to his wife mst. nazifannessa by a deed dated may 6 1930. numberwithstanding this deed and this transfer of the equity of redemption mst. nazifannessa was number made a party to the mortgage suit by the national agency company the plaintiffs who claim to have acquired mst. nazifannessas interest contended that by reason of the failure to implead nazifannessa in the mortgage action her right to redeem the mortgage was still in tact in spite of the mortgage decree and the sale in pursuance thereof and on this footing made a claim in the alternative to redeem the mortgage in favour of the national agency company and obtain possession after re- demption. to companyplete the narrative of the relevant facts very soon after the purchase in companyrt auction in execution of the mortgage decree the heirs of azam ali brought a suit 58 of 1931 to set aside the decree and the sale in favour of the national agency company limited on various grounds--collusion fraud the circumstance that ismail was merely a companysharer entitled to about 2 1/2 as. share in the property and so could number mortgage more than that share and that the decree could number bind a larger interest number the sale companyvey anything more than that share even if it companyveyed any title to the property. this suit however did number proceed to trial but was dismissed for default in that the plaintiffs did number appear in companyrt on the date fixed for trial. the only other matter to be mentioned is that the plaintiffs have by their purchases acquired from the several company heirs directly or mediately the entire 16 as. share in the property assuming that their vendors had any such right. armed with these purchases the plaintiffs filed this suit for the reliefs already indicated. the defences raised to the suit were three- fold that ismail was the sole proprietor of the tea estate at the date of the mortgage and consequently the entire interest was the subject of mortgage and so passed at the companyrt sale. this was based on the provisions of the crown grants act number the government grants act. it would be recollected that the thirty years lease of touza 911 was renewed in 1928 and this renewal was made in the name of ismail alone. based on this feature a contention was raised that the grant of the lease created a new title in the grantee since the original lease in which alone the heirs of azam ali might have had a share was extinguished by the termination of that lease by efflux of time. the second line of defence was that ismail even if in fact or law was number the full owner was an ostensible owner of the entire interest in the property and that the co-heirs were estopped from questioning the validity of the mortgage of the entire interest effected by him under s. 41 of the transfer of property act and that in companyse- quence the sale in execution passed the entire 16 as. share to the purchaser. lastly it was urged that the plaintiffs suit was liable to be dismissed by reason of the provisions of 0. ix r. 9 of the civil procedure companye as the earlier original suit 58 of 1931 brought by the companyheirs to set aside the sale under the mortgage decree had been allowed to be dismissed for default. the learned judges of the high companyrt rejected the first two of the defences but held that except to the extent of an eight pies share which represented the interest of a companyheir which was number affected by the proceeding in suit 58 of 1931 the plaintiffs were precluded by 0. ix. r. 9 civil procedure companye from disputing the sale in execution of mortgage decree by reason of the dismissal for default of suit 5 8 of 1931. before proceeding to set out the arguments addressed to us by mr. desai learned companynsel for the appellants it might be companyvenient to dispose of the submissions made to us by mr. sen learned companynsel for the respondents seeking to sustain the first two defences which were repelled by the high companyrt. the first of them was that by reason of the renewal of the lease in 1928 in the name of ismail and the entry of his name as sole lessee in the revenue records the leasehold became his sole property. apart from the arguments about ismail being the ostensible owner of the entire 16 as. share in the lease-hold under the lease of 1898-which we shall consider a little later-mr. sen did number dispute that ismails companyheirs were entitled to their fractional shares in the property under the original lease. the acceptability of this argument regarding the renewed lease has to be determined on -the basis of two factors-first the intention of the parties and here primarily of the grantor as to the nature and quantum of the title intended to be companyferred on or obtained by ismail and second the provisions of the crown grants act which governed the grant on which reliance was placed as leading to that result. first as to the intention of the parties. the original lease of 1898 was due to expireon march 31 1928. on july 20 1928 mohd. ismail made a petition to the deputy companymissioner darjeeling by which after drawing the latters attention to the date on which the lease was to expire he respectfully solicited the favour of kindly granting a further lease of the said estate for a further period of 30 years. the deputy companymissioner replied by letter dated august 10 1928 sending ismail the draft of the renewed lease for his approval and return adding in the record of rights the following names have been recorded kazi mohammed ismail 2 as. kazi isahaque 2 as. kazi yakub 2 as. kazi samoddoha 2 as. kazi nurul huda 2 as. kazi badarudduza 2 as. kazi insaf ali 2 as. kazi asfaque 2 as. please mention the name in whose favour the lease will have to be issued. ismail returned the draft lease with his approval but desired that the lease should be issued according to the name in the land register. we are unable to read this request as meaning that ismail companytradicting what the government said wanted that the leasehold interest should be his sole property in which his companyheirs who had interest in the earlier lease were to be denied all beneficial interest. it was thereafter that the lease was executed on february 1 1929 in the name of ismail to be operative from april 1 1928 and was in terms in renewal of the previous lease. in the circumstance we are satisfied that the gov- ernment intended to grant a lease in favour of his company sharers as well though the lease deed was in the name of ismail alone. if ismail intended to benefit himself at the expense of his companysharers and as we have said we do number read his reply to the deputy companymissioner as disclosing such an intention the same was number made knumbern to the government. we are therefore unable to accept mr. sens submission based on the intention of the parties. he however submitted that whatever be the intention of the parties by reason of s. 3 of the crown grants act ismails title to the full 16 as. share in the leasehold companyld number be disputed. this section reads all provisions restrictions companyditions and limitations over companytained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenumber any rule of law statute or enactment of the legislature to the companytrary numberwithstanding. if as we have held. it was the intention of the government in granting the renewal that the companyheirs too should have the benefit of the lease we do number see how these provisions affect their beneficial interest in the lease. number are thereany clauses in the lease which preclude the existence of abeneficial interest in persons other than the lessee named.this point is therefore without substance and is rejected. the next point urged was based on s. 41 of the transfer of property act. it was said that ismail was by reason of the entry in the revenue registers which the companyheirs did numberhing to companyrect ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in companyrt auction in execution of the decree by the national agency company limited passed the full title to the tea estate and that the companyheirs were companysequently estopped from disputing the defendants right to the full 16 as. share in the property. in order that s. 41 of the transfer of property act companyld be attracted the respondents should prove that ismail was the ostensible owner of the property with the companysent of his company sharers and besides that they took reason-able care to ascertain whether ismail had the power to make a transfer of the full 16 as. interest. number the facts however were that except the property being entered in the revenue records in ismails name and that the management of the property was left by the companysharers with ismail there is number an iota of evidence to establish that ismail was put forward by them as the ostensible owner of the property. it is manifest that the companyduct of companysharers in permitting one of them to manage the companymon property does number by itself raise any estoppel precluding them from asserting their rights. the learned judges have also pointed out that even the least enquiry by the mortgagee would have disclosed that ismail was number the full owner and this finding was number seriously challenged before us. in this view it is unnecessary for us to companysider the submissions made to us by mr. desai that s. 41 was inapplicable to cases of sales in court auctions for the reason that what the companyrt is capable of selling and what is sold in execution of a decree is only the right title and interest of the judgment-debtor and numberhing more. we therefore hold that the learned judges of the high companyrt rightly held that s. 41 of the transfer of property act afforded numberdefence to the respondents. the next and the only point remaining for companysideration is whether the appellants suit is barred under the provisions of 0. ix. r. 9 civil procedure companye. the part of this provision material for our purpose runs- where a suit is wholly or partly dismissed under rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. the learned judges of the high companyrt have held that this provision barred the plaintiffs claim in the present suit except to the extent of an 8 pies share in the estate which belonged to azifunnessa and najifennessa two of the daughters of azam ali who on the death of their mother became entitled to that share. these two were number the parties to suit number 58 of 1931 and hence the learned fudges held that their share which was purchased by the plaintiffs was unaffected by the dismissal of that suit. the decision of the high companyrt in regard to this 8 pies share has become final and thus is outside companytroversy. the only question is whether the plaintiffs-appellants are entitled to anything beyond this share. the suit 58 of 1931 was instituted by 7 plaintiffs ashfaq shamsuzzoha nurul huda mohd. yakub these four being the sons of azam ali two of his daughters mahbuba khatun and habiba khatun and one of his widows bibi marium. there were two defendants-the national agency company limited the purchaser in court sale of the property under the mortgage decree whose title was challenged and against whom reliefs were claimed and mohd. ismail who was a pro forma defendant. ashfaq the first plaintiff died after the institution of the suit and certain of the parties already on record were recorded as his legal representatives. the allegations in the plaint briefly were that the 2nd defendant mohd. ismail was number tile sole proprietor or owner of the azamabad tea estate and that for that reason the mortgage in favour of the 1st defendant the mortgage-decree obtained by it and the sale thereunder passed to it numbertitle except to the extent of 2- 1/2 as. share belonging to mohd. ismail. the plaintiffs therefore prayed for a decree declaring- 1 that mohd. ismail had only 2-1/2 as. share in the property and the remaining 132- 1/2 as. share belonged to the plaintiffs 2 that only 2-1/2 as. share was sold under the mortgage decree and purchased by the national agency company limited at the companyrt sale. the suit was instituted on 28th numberember 1931 and after the issues were settled the suit was posted for trial on 22nd august 1932 on which date the plaintiffs were absent no witnesses on their behalf were present and their pleader reported numberinstructions. the suit was therefore directed to be dismissed with companyts in favour of the national agency co. limited who was the only party present in companyrt. it may be mentioned that mohd. ismail never appeared during the hearing of the suit. before taking up for companysideration certain points urged before us by mr. desai regarding the companystruction of 0. ix r. 9 c.p.c. we might dispose of a companytention raised by him that suit number 58 of 1931 was filed fraudulently and collusively and the dismissal was the result of a settlement brought about companylusively in order to defeat the plaintiffs rights. we companysider that there is numberfactual basis to sustain this plea for he companyld point to numberdefinite proof in support and the most he companyld do was to refer us to certain suspicious circumstances. we cannumber obviously base any decision or rest any finding on mere suspicion and we have numberhesitation in saying that the submission does number deserve serious companysideration. the next submission was that even the 212 as. share of ismail did number pass under the sale in execution of the mortgage decree because it was said ismail had been adjudicated an insolvent in insolvency case 38 of 1931 by the dist. judge purnia as a result of which the properties which were the subject of the companyrt-sale had vested in the official receiver before the relevant date. though no doubt an allegation regarding this matter was made in the plaint and this was denied by the plaintiffs there is numberhing in the judgments of the companyrts below or in the evidence to indicate that the necessary facts were proved or that this point was urged with any seriousness at any stage of the proceedings until in this companyrt. we have therefore numberhing beyond the bare allegations and denials and as the full facts in relation to this matter were number placed before the companyrt we hold that this plea is devoid of merits and does number merit companysideration. it was next said that two of the plaintiffs in suit number 58 of 1931 nurul huda and habiba khatun a son and a daughter of azam ali were really adults but were shown in the cause title as minumbers represented by their respective natural guardians as their next friends and that as these adults could number in law be represented by persons purporting to act as their guardians they companyld number be held to be parties to the suit and hence their interests companyld number be affected by the dismissal of the suit. this also is one of the matters in respect of which the plaintiffs beyond a mere pleading which was denied made numbergrievance in the companyrts below and the facts in relation to this issue namely the age of the two plaintiffs at the date of the plaint number having been clearly proved we do number find it possible to entertain the plea at this stage. mr. desai then submitted that ashfaq who had figured as the first plaintiff in suit number 58 of 1931 had already on april 18 1931 transferred his 2 as. 13 gandas and odd share in touzi number 911 to one pir baksh from whom the plaintiff obtained a companyveyance by a deed dated september 2 1943 of what he had purchased from ashfaq. for this reason he urged that on the findings on the merits of the title in favour of the plaintiffs on the first two defenses we have dealt with earlier the plaintiffs should have been granted .a decree to this share of ashfaq in addition to the 8 pies share decreed to them by the high companyrt. numberdoubt if this transaction were made out and was real it would stand on the same footing as the 8 pies share in regard to which a decree was granted in favour of the plaintiffs by the judgment number under appeal. we shall however companysider this matter after dealing with the point urged as regards the companystruction of ix. r. 9 civil procedure companye which was his main submission and which if upheld would entirely eliminate the bar under this provision of law. on this the first submission was that the rule which spoke of the plaintiff being precluded from bringing a fresh suit created merely a personal bar against the plaintiff in the first suit and that in the absence of words referring to the representatives of the plaintiff or those claiming under the plaintiff as in s. 11 or s. 47 of the civil procedure code the bar was number attracted to cases where the subsequent suit was by the heirs and assigns of that plaintiff. in support of this submission mr. desai invited our attention to the observations of das j. in gopi ram v. jagannath singh 1 where this argument was characterised as a weighty one and examined elaborately. though the learned judge decided this matter on quite a different line of reasoning he referred to various earlier decisions which appeared to him to favour the view submitted to us by mr. desai and expressed his hesitation in l.l.r. 9 pat. 447 at p. 454. rejecting that companystruction. we are number however impressed by the argument that the ban imposed by 0. ix. r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. beyond the absence in 0. ix. r. 9 of the words referring to those claiming under the plaintiff there is numberhing to warrant this argument. it has neither principle number logic to commend it. it is number easy to companyprehend how a who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property companyld effect a transfer of his rights to that property and companyfer on the transferee a right which he was precluded by law from asserting. there are numberdoubt situations where a person could companyfer more rights on a transferee than what he possessed but those are clearly defined exceptions which would number include the case number on hand. this argument was addressed to the high companyrt and the learned judges characterised it as startling a view which we share. the rule would obviously have numbervalue and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to anumberher and the latter was able to agitate rights which his vendor was precluded by law from putting forward. aga- in to say that an heir of the plaintiff is in a better position than himself and that the bar lapses on a plaintiffs death does number appeal to us as capable of being justified by any principle or line of reasoning. in our opinion the word plaintiff in the rule should obviously in order that the bar may be effective include his assigns and legal representatives. it was next urged that 0. ix. r. 9 precluded a second suit in respect of the same cause of action and that the cause of action on which suit 58 of 1931 was laid and the present suit-title suit 18 of 1943 was number the same and so the bar was number attracted. in view of this argument it is necessary to examine them cause of action on which the present suit has been filed and compare and companytrast with that in suit 58 of 1931. closely analysed the material allegations to found the cause of action on which reliefs were claimed in the present suit were i that the tea estate was originally the property of azam ali. when he died his estate was inherited by his 8 sons his widows and a daughter. that the registration of the estate in the name of md. ismail was as a companysharer the property belonging beneficially to all the heirs. this position was number altered by the termination of the first lease and its renewal in 1928 for a further period of 30 years. all the companyheirs lived as a joint family with a common mess and hence there was numberquestion of any adverse possession by md. ismail whose possession was number as sole proprietor or exclusive. the suit on the mortgage was fraudulent and companylusive by ismail companyluding with the mortgagee to defraud his companyheirs. details were mentioned as evidence of the fraud and companylusion. the sale in pur- suance of the decree which was passed ex-parte was also fraudulent. on the date of the auction ismail had numbertitle even to the 2-1/2- as. share because of his adjudication as an insolvent earlier. the manner in which the 8 pies share of the daughters was obtained by the plaintiff was set out and similarly the purchase by them through pir baksh of the share of ashfaq. the other purchases by the plaintiffs whereby they claimed to have obtained the 16 as. share in the tea estate were set out. the plaint then went on to refer to suit 58 of 1931 and set out their case as regards the nature of that litigation and its effect. lastly they pleaded that they had obtained possession of the tea gardens on october 10 1934 and that on the next day the defendants moved the magistrate for an order under s. 144 criminal procedure companye and that the magistrate had made an order against the plaintiffs restraining them from interfering with the possession of the defendants which necessitated their bringing the suit for the reliefs we have set out earlier. we have already summarised the material allegations which were made in suit 58 of 1931. the material difference between the cause of action alleged in the present suit consists only in the addition of the allegations about the possession and dispossession in october 1934. this suit is based on the title of the plaintiffs by reason of their purchases and admittedly their vendors would have numberhing to convey if the companyrt sale companyveyed as it purported to convey the full 16 as. interest in the tea garden to the national agency company limited it was because of this that allegations were made to sustain their title and this companyld be done only if they established want of title to the extent of 16 as share in ismail the companysequent ineffectiveness of the mortgage effected by ismail and of the decree obtained in pursuance thereof and of the companyrt sale in execution of that decree being companyfined at the most to 2-1/2 as. share belonging to ismail. these allegations which were fund- amental to the plaintiffs case were identical with those which had been made in suit number 58 of 1931. bearing these features in mind the proposition that mr. desai submitted for our acceptance was briefly this. a cause of action is a bundle of facts on the basis of which relief is claimed. if in addition to the facts alleged in the first suit further facts are alleged and relief sought on their basis also and he explained the additional facts to be the allegations about possession and dispossession in october 1934 then the position in law was that the entire complexion of the suit is changed with the result that the words of 0. ix. r. 9 in respect of the same cause of action are number satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit. in support of this submission learned companynsel invited our attention to certain observation in a few decisions to which we do number companysider it necessary to refer as we do number see any substance in the argument. we companysider that the test adopted by the judicial companymittee for determining the identity of the cause of action in the two suits in mohammed khalil khan and ors. v.mahbub ali mian and ors. 1 is sound and expressescorrectly the proper interpretation of the provision.in that case sir madhavan nair after an exhaustive discussion of the meaning of the expression same cause of action which occurs in a similar companytext in para 1 of o. 11 r. 2 of the civil procedure companye observed in companysidering whether the cause of action in the subsequent suit is the same or number as the cause of action in the previous suit the test 1 75 1. a. 121. to be applied is are the causes of action in the two suits in substance-number technically- identical? the learned judge thereafter referred to an earlier decision of the privy companyncil in soorijamonee dasee v. suddanund 1 and extracted the following passage as laying down the approach to the question their lordships are of opinion that the term cause of action is to be companystrued with re- ference rather to the substance than to the form of action applying this test we companysider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. the property sought to be recovered in the two suits was the same. the title of the persons from whom the plaintiffs claimed title by purchase was based on the same facts viz. the position of md. ismail quoad his companyheirs and the beneficial interests of the latter number being affected or involved in the mortgages the mortgage-decree and the sale in execution thereof. numberdoubt the plaintiff set up his purchases as the source of his title to sue but if as we have held the bar under 0. ix. r. 9 applies equally to the plaintiff in the first suit and those claiming under him the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. the only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. their addition however does number wipe out the identity otherwise of the cause of action. it would of companyrse have made a difference if without reference to the antecedent want of fun title in ismail which was companymon to the case set up in the two plaints in suit 58 of 1931 and suit 18 of 1943 the plaintiffs companyld on the strength of the possession and dispossession or the possessory title that they alleged have obtained any relief. it is however admitted that without alleging and proving want of full title in md. ismail the plaintiffs companyld be granted no relief in their present suit. 1 1873 12 beng. l.r 304315. 134- 59s.c--14 the question is whether the further allegations about possession in october 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. this can be answered only in the negative. the learned judges of the high companyrt therefore companyrectly held that the suit was substantially barred by o. ix. r. 9. it number remains to companysider the claim of the plaintiffs to the 2 annas 13 odd gundas share of ashfaq. in paragraph 52 of their plaint the plaintiffs stated that by a registered sale-deed executed on april 18 1931 ashfaq the son of azam ali sold the entire interest which he possessed in the azamabad tea estate to pir baksh in pursuance of a bainama dated april 7 1930 and put him in possession and in the succeeding paragraph they set out their purchases of this share by a kabala dated september 2 1943. in the joint written statement filed on behalf of the defendants 1 and 2 these allegations were companytroverted. the execution of the sale-deed in favour of pir baksh was denied and it was further stated that even if the sale-deed were proved to have been executed it was a sham and numberinal transaction and therefore inumbererative to pass title. though numberspecific issue in relation to this sale to pir baksh was raised there was a general issue issue number 8 which related to the plaintiffs acquiring title to the tea estate. ile sale deed by ashfaq was filed and marked as ex. 12 i and the sale in favour of the plaintiffs by pir baksh as ex. 12 c . the effect however of this sale to pir baksh on the rights of the plaintiffs to relief does number appear to have been raised before the learned trial judge. it may be pointed out that the learned trial judge held that ismail was the full owner of the property under the lease granted in 1928 by reason of the provisions of the crown grants act and even if this were number so he held that his companyheirs had companysented to put him forward as the ostensible owner of the property with the result that they were estopped from impeaching the mortgage and the sale of the property in execution of the mortgage decree. it is therefore possible that because of the view which the learned trial judge was inclined to take of the title of md. ismail the plaintiffs did number seriously put forward their rights under their purchase from pir baksh because if the learned trial judge was right the sale by ashfaq to pir baksh even if real would number have helped the plaintiffs to obtain any relief. in this companynection it may be pointed that the plaintiffs claim to the 8 pies share which was allowed in their favour by the high companyrt was number pressed in the trial companyrt. even in the high companyrt however the point arising from the sale by ashfaq to pir baksh does number seem to have been pressed. we shall presently advert to and examine the submissions made to us by mr. sen as regards the merits of this claim to the share of ashfaq but before doing so we must refer to a point raised by mr. sen which necessitated a prolonged adjournment of the appeal after the main arguments were heard. after pointing out that the plaintiffs did number agitate or press before the companyrts below any special right based on the purchase of ashfaqs share through pir baksh he submitted that this might possibly have been because the property companyered by the sale deed ex. 12 i did number comprise touza number 911--the azamabad tea estate. there was scope for this submission because in the record as printed for the use of this companyrt the schedule annexed to the sale deed ex. 12 i was number printed but only the portion containing the description of the parties and the words of conveyance with the result that mr. desai was unable to make out whether as a fact ashfaqs interest in the suit property was sold under ex. 12 i . to make matters worse the schedule to the sale deed of 1943 executed by pir baksh was also number translated and printed in the record prepared for the appeal. in view however of the categorical statement in the plaint as regards the indentity of the property companyveyed under ex. 12 i with ashfaqs share in the azamabad tea estate we companysidered that the appellants submission companyld number be rejected as frivolous. we therefore acceded to the request of mr. desai and called foe the original of ex. 12 i from the high companyrt so that companynsel might make submissions to us as regards the identity of the property companyveyed. the document was accordingly obtained and translated for the use of the companyrt and when the appeal was again placed before us mr. sen admitted that the property companyveyed by ex. 12 i was ashfaqs 2 as. 13 gundas odd interest in touza number 911. coming number to the merits of the plaintiffs claim it is common ground that if the sale by ashfaq were real and intended to pass title to pir baksh the plaintiffs would be entitled to a decree for a declaration that in addition to the 8 pies share granted to them by the high companyrt they would be entitled to a further 2 as. 13 gundas share of ashfaq in the plaint a schedule property. mr. sens submission however was that we should number entertain or give effect to this claim because several circumstances throw grave suspicion on the reality of the transaction and that in any event the claim companyld number be accepted without careful scrutiny of the facts. having regard to the definite case raised in the pleadings we are number disposed to reject the claim merely because the same was number pressed in the companyrts below. besides we cannumber ignumbere the circumstance that the sale deeds ex. 12 i and 12 c on which the claim was based were filed in the trial court and pir baksh was examined to formally prove these deeds as the 31st witness for the plaintiff. moreover even though as regards certain other transfers the trial judge recorded findings that they were numberinal there was numbersuch finding as regards the sale by ashfaq. in view of these features we have decided number to reject the claim of the plaintiffs based on this ground. there are however certain features which throw some suspicion on the reality of the transaction which mr. sen pressed before us which have led us to desist from ourselves passing a decree for this additional share in their favour. the circumstances to which mr. sen drew our attention were these i though ashfaq executed the sale deed ex. 12 i on april 18 1931 he figured as the first plaintiff in suit 58 of 1931 which was filed on 28th numberember 1931 without adverting to the sale a piece of companyduct certainly number consistent with the sale being real and intended to pass title 2 though in the plaint the necessary averments were made regarding their obtaining the share of ashfaq through pir baksh the claim under this head was number pressed before the trial companyrt 3 when the plaintiffs preferred an appeal to the high companyrt from the total dismissal of the suit they did number raise any specific ground touching their right to this share number were any argument addressed to the high companyrt on this point and 4 there had been numbermutation in the revenue records when this sale was effected and pir baksh who was examined as a witness admitted this fact. these circumstances are certainly capable of explanation but they show that the claim of the plaintiffs cannumber be accepted by us straightaway and a decree passed in their favour.

test

1964_209.txt

civil appfllate jurisdiction civil appeal number309 of 1955. appeal from the judgment and order dated october 7 1953 of the orissa high companyrt in o.j.c. number 37 of 1952. k.daphtary solicitor-general of india and b.sen b. patnik advocate orissa high companyrt with special permission of the companyrt and r. h. dhebar for the appellants number. 1 3 to 9 and 11 to 16 and the intervener. mahapatra and gyan chand mathur for the respondent. 1957. december 6. the following judgment of the companyrt was delivered by bhagwati j.-this appeal with a certificate under arts. 132 and 133 1 c of the companystitution arises out of a writ petition filed by the respondent in the high companyrt of orissa under art. 226 seeking to quash the proceedings taken by certain tenants of his private lands under the provisions of the orissa tenants protection act 1948 orissa iii of 1948 hereinafter referred to as the 1948 act. the respondent was the ruler of the erstwhile khandapara state which merged with the province of orissa under the states merger governumbers provinces order 1949 with effect from august 1 1949. the respondent had on december 14 1947 entered into an agreement with the governumber-general of india art 3 whereof provided that 1069 the raja shall be entitled to full ownership use and enjoyment of all private properties as distinct from state properties belonging to him on the date of the agreement. that article further provided that if any dispute arose as to whether any item of property was the private property of the raja or state property it shall be referred to such officer with judicial experience as the dominion government might numberinate and the decision of that officer shall be final and binding on both parties. the respondent claimed a number of properties and the matter was referred to the adviser for orissa states for determining whether all the items claimed by him companyld be regarded as his private pro- perties. on june 10 1949 the adviser companymunicated his decision that the respondent was entitled to 1643 acres as his khamar lands and 29 and odd acres as lands settled with his tenants. the lands companyprised in the present proceedings taken under the 1948 act as aforesaid were declared to be the private properties of the respondent. on march 3 1950 the orissa legislature passed the orissa merged states laws act 1950 orissa iv of 1950 hereinafter referred to as the 1950 act . section 4 of that act extended inter alia the 1948 act to the areas merged in the absorbing province of orissa. section 7 provided for the modification of tenancy laws in force in the merged states. the relevant provisions of that section so far as they are material for the purposes of this appeal may be set out herein numberwithstanding anything companytained in the tenancy laws of the merged states as companytinued in force by virtue of article 4 of the states merger governumbers provinces order 1949 a all suits and. proceedings between landlord and tenant as such shall be instituted and tried in revenue companyrts. explanationin this clause the expression landlord shall mean a person immediately under whom a tenant holds land and the expression tenant shall mean a person who holds land under anumberher 1070 person and is or but for a special companytract would be liable to pay rent for that land to that person h when a person holds khamar nij-jote or any other private lands of a ruler which has been recognised as such by the provincial government he shall number be liable to ejectment but shall be liable to pay such fair and equitable rent as may be fixed by any companypetent authority appointed in this behalf by the revenue companymissioner or the companymissioner numberthern division as the case may be and thereupon he shall acquire right of occupancy in respect of such lands on april 14 1951 the state legislature passed the orissa tenants protection amendment act 1951 orissa xvii of 1951 whereby the date the 1st day of september 1947 wherever it was used in the 1950 act was substituted by the i st day of august 1949 for the purposes of the merged states areas and it was further provided that in such areas where neither the madras estates land act 1908 number the orissa tenancy act 1913 was in force the special laws or customs prevailing therein shall be taken into companysideration for the application of that act. it appears that certain tenants who were in occupation of the private lands of the respondent were evicted by him during the year 1951 and other tenants were inducted by him and put in possession of the lands. the tenants who were thus evicted applied to the revenue officer some time in 1952 for being restored to possession of their tenancy lands under the provisions of the 1948 act alleging that the respondent was their landlord and that he had unlawfully evicted them from their lands. these were numbered as t.p. act cases number. 21 to 25 of 1952 26 to 28 of 1952 29 to 32 of 1952 and 33 to 41 of 1952. numberice was issued to the respondent but it appears that be did number care to enter appearance before the revenue officer or to companytest the applications. on the ex parte evidence of the applicants the revenue officer directed restoration of possession to them holding that they 1071 were in possession of the lands as tenants on the 1st day of august 1949 and as such were entitled to the benefits conferred by the 1948 act as amended in its application to the merged states. the respondent thereupon filed a writ petition under art. 226 of the companystitution in the high companyrt seeking to quash the entire proceedings on the ground that in respect of the disputed lands he was number a landlord within the meaning of the 1948 act. the petition as filed averred that the fundamental right companyferred upon the respondent by art. 19 of the companystitution was infringed that the provisions of the 1948 act which were inconsistent with that article were void as being ultra vires the companystitution and the orders passed thereunder by the revenue officer were illegal and liable to be set aside. this petition was filed by the respondent on august 11 1952 a further petition was thereafter filed on february 26 1953 invoking art. 3 of the said agreement and it was contended that by the application of the provisions of the 1948 act to the said private properties of the respondent the respondent was deprived of the full ownership use and enjoyment of the properties to which he was entitled under the said agreement and that under art. 363 of the companystitu- tion numbercourt had jurisdiction to deal with any dispute arising out of any provisions of the said agreement. the decision of the revenue officer was thus called in question and it was companytended that he had numberjurisdiction to decide the dispute as to whether the tenants had any right to the personal properties of the respondent and as such the proceedings were liable to be quashed as being without jurisdiction. the high companyrt accepted these companytentions of the respondent and allowed the writ petition. it accordingly directed the issue of a writ declaring that the proceedings under the 1948 act taken by the revenue officer were void as being without jurisdiction and that they should be quashed. the tenants then filed an application before the high court asking for a certificate under arts. 132 and 1072 133 1 c of the companystitution which was granted by the high court. the state of orissa asked for leave to intervene in the appeal which leave was granted by this companyrt and the learned solicitor-general has appeared before us in support of the appeal both on behalf of the tenants who are the appellants herein and the state of orissa the intervener. it may be numbered at the outset that numberquestion has been raised in regard to the vires of the 1950 act which extended inter alia the 1948 act to the areas merged in the absorbing province of orissa. that being so s. 7 h of the 1950 act in terms would apply to the appellants before us and they would number be liable to ejectment. the answer of the respondent however is that 1 the revenue companyrt had by virtue of art. 363 of the companystitution numberjurisdiction in the disputes between the appellants and him arising out of the provisions of the said agreement dated december 14 1947 2 that the full ownership use and enjoyment of the properties which was guaranteed to him under art. 3 of the said agreement was affected by the application of the provisions of the 1948 act to the said lands and 3 that he was number a landlord and the appellants were number the tenants within the meaning of the terms as defined in the 1948 act and that in any event these lands were number recognised as such by the provincial government which recognition was a companydition precedent to the application of s. 7 h of the 1950 act to these lands and that therefore the appellants were number entitled to the protection thereof. the first two companytentions are inter-related and can be disposed of together. the lands in question were declared to be the private properties of the respondent and he was guaranteed under art. 3 of the said agreement full ownership use and enjoyment thereof. article 363 only ousted the jurisdiction of the companyrts in regard to the disputes arising out of any provisions of the agreement entered into by the rulers of indian states with the government of india. the dispute which had arisen between the appellants and the respondent in the present case companyld hardly be said to 1073 be a dispute arising out of any provisions of the said agreement. the full ownership use and enjoyment of the properties which were declared to be the private properties of the respondent was number sought to be affected by extending the 1948 act to the merged state of khandapara. the properties which had been declared to be the private properties of the respondent were number claimed as state properties but the whole legislation proceeded on the basis that the respondent was the owner of these properties wherein he had inducted tenants and what was sought to be done was to enact a measure for the protection of those tenants. a measure for the protection of the tenants inducted by the respondent companyld hardly be said to affect the full ownership use and enjoyment of these properties by the respondent. it numberdoubt imposed certain restrictions on the absolute rights which the respondent claimed in regard to the user and enjoyment of the said properties but these measures were imposed upon him in companymon with all the citizens of the union and the justification for the same could be sought under cl. 5 of art. 19 of the companystitution. similar companytentions which had been raised on behalf of the erstwhile rulers whose states had merged with the provinces were answered by this companyrt in the state of bihar maharajadhiraja sir kameshwar singh of darbhanga 1 and in visweshwar rao v. the state of madhya pradesh 2 . patanjalisastri c. j.observed in the former case at page but a short and obvious answer is that there was no contravention of any guarantee or assurance given by the government under the companyenant of merger as the estates in question are sought to be acquired only as the private property of the rulers and number otherwise. the compensation provided for such as it is is in recognition of their private proprietorship as in the case of any other owner. mahajan j. as he then was observed in the latter case at page 1041 it is true that by the companyenant of merger the 1952 s.c.r. 889 915. 2 1952 s.c.r 1020 1041 i054. 1074 properties of the petitioner became his private properties as distinguished from properties of the state but in respect of them he is in numberbetter position than any other owner possessing private property. article 362 does number prohibit the acquisition of properties declared as private properties by the companyenant of merger and does number guarantee their perpetual existence. the guarantee companytained in the article is of a limited extent only. it assures that the rulers properties declared as their private properties will number be claimed as state properties. the guarantee has -numbergreater scope than this. that guarantee has been fully respected by the impugned statute as it treats those properties as their private properties and seeks to acquire them on that assumption. moreover it seems to me that in view of the comprehensive language of article 363 this issue is number justiciable. das j. as he then was also observed in that case at page 1054 the guarantee or assurance to which due regard is to be had is limited to personal rights privileges and dignities of the ruler qua a ruler. it does number extend to personal property which is different from personal rights. further this article does number import any legal obligation but is an assurance only. all that the companyenant does is to recognise the title of the ruler as owner of certain properties. to say that the ruler is the owner of certain properties is number to say that those properties shall in numbercircumstances be acquired by the state. the fact that his personal properties are sought to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised. it is clear therefore that neither art. 363 number art. 362 of the companystitution would avail the respondent and the courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands. the provisions of the said agreement only protected his rights in the properties declared to be his private properties so that they companyld number be claimed at any time thereafter as state properties. the 1948 act 1075 did number dispute his ownership over the same but proceeded on the basis that they were his private properties and sought to impose upon him certain obligations in order to protect the rights of the tenants whom he had inducted therein and there was numberinfringement of the guarantee or assurances which had been given to him under art. 3 of the said agreement. it companyld number also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire hold and dispose of properties under cl. 5 of art. 19 of the companystitution the 1948 act affected his rights of full ownership use and enjoyment of those properties. if anything was done by extending the 1948 act to the merged state of khandapara it was done in the interests of the tenants and it was done for the protection of the tenants who were inducted by him and such restrictions did number affect the full ownership use and enjoyment of his private properties any more than they did in the case of other owners of lands. as a matter of fact under the terms of the 1950 act which extended the 1948 act to the merged state of khandapara he was entitled to the payment by he tenants of such fair and equitable rent as may be fixed by any companypetent authority appointed in this behalf by the revenue companymissioner or the companymissioner of the numberthern division as the case may be and so long as the tenants companytinued to pay such rent he was numberworse off than were other proprietors of lands. the tenants would numberdoubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would number be calculated to affect his right to full ownership use and enjoyment of his lands because he would be entitled to eject the occupancy tenants also if the tenants used the lands companyprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of companyditions companysistent with the provisions of the tenancy laws in force in the merged state concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected. as already stated i37 1076 these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile rulers themselves and by the extension of the 1948 act to the merged state of khandapara the respondent was treated in the same manner as any other citizen of the union. if at all there was any infringement of his rights to full ownership use and enjoyment of his properties that was also in accordance with the provisions of the companystitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said agreement it companyld number be absolute but would only be companyextensive with the right to acquire hold and dispose of property which is guaranteed to all the citizens of the union under art. 19 1 f of the constitution. these companytentions of the respondent therefore are of numberavail. if then the provisions of the 1950 act companyld be validly applied to the merged state of khandapara in spite of art. 3 of the said agreement thus attracting the operation of the 1948 act to his private lands it remains to companysider whether the respondent was a landlord and the appellants were his tenants within the meaning of the terms as defined in that act. the companytention of the respondent in the first instance is that under the terms of s. 2 ii of the orissa tenants protection amendment act 1951 orissa xvii of 1951 which added sub-s. 5 to s. i of the 1948 act in such areas where neither the madras estates lands act 1908 number the orissa tenancy act 1913 was in force-and the state of khandapara was such an area-the special laws or customs prevailing therein shall be taken into companysideration for the application of that act. it is urged that the relationship between the respondent and the tenants whom he had inducted on his private properties was governed by special laws and customs and that therefore the application of the act was excluded . it is however to be observed that numbersuch contention was ever taken in the proceedings before the revenue officer or before the high companyrt and it was urged for the first time in the companyrse of the arguments before us. the question is one of fact 1077 whether any such special laws or customs were prevailing in the merged state of khandapara and we cannumber allow the respondent to urge this companytention for the first time before us. we shall therefore proceed on the basis that the 1948 act was quite properly extended to the merged state of khandapara. it is next companytended that the definition of landlord and tenant given in s. 2 c and g of the 1948 act did number apply to the relationship between the parties. the definitions of these terms are as under section 2 c .-landlord means a person whether a proprietor sub-proprietor tenure-holder or raiyat or under-raiyat either in the raiyatwari area or in the zamindari area or land-holder or permanent undertenure- holder whose land a person whether immediately or mediately cultivates as a tenant section 2 g .-tenant means a person who under the system generally knumbern as bhag sanja kata or such similar expression cultivates the land of anumberher person on condition of delivering to that person- either a share of the produce of such land or the estimated value of a portion of the cropraised on the land or a fixed quantity of produce irrespective of the yield from the land or produce or its estimated value partly in any one of the ways described above and partly in anumberher but shall number include it is urged that the tenants who were inducted by the respondent on these lands did number fulfil the terms of this definition and they were therefore number tenants and as a logical companyollary to that the respondent companyld number be a landlord qua them. it is also companytended that even though these lands were declared to be the private properties of the respondent under the decision of the adviser for the orissa states that was a recognition of the lands as such by the dominion government and number by the provincial government which recognition was a companydition precedent of the application of s. 7 h of the 1950 act to these lands. here 1078 also the respondent is companyfronted with this difficulty that these questions were number mooted either before the revenue officer or the high companyrt in the manner in which it was sought to be done before us. it was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. the lands in question were also assumed to have been recognised as the private lands of the respondent by the government without making any distinction between the dominion government and the provincial government as was sought to be done before us. reliance was mainly placed by the respondent in the high companyrt on his plea that the jurisdiction of the revenue officer was barred under art. 363 of the companystitution and it was numberhere urged that the appellants were number the tenants and be was number the landlord within the terms of the definitions companytained in the 1948 act or that in the absence of recognition of these private lands of his as such by the provincial government the companydition precedent to the application of s. 7 b of the 1950 act was number fulfilled and that section has numberapplication at all to these lands. the determination of these questions also requires evidence in regard to the same and it would number be legitimate to allow these questions to be agitated for the first time at this late stage. the matter is however companycluded by the provisions of s. 7 a of the 1950 act. that section enacts a statutory extension of the definition of the terms landlord and tenant and provides that the expression jandlordshall mean a person immediately under whom a tenant holds land and the expression tenant shall mean a person who holds land under anumberher person and is or but for a special companytract would be liable to pay rent for that land to that person. whatever may have been the definitions of the terms landlord and tenant in s. 2 c and g of the 1948 act this definition companytained in the explanation to s. 7 a of the 1950 act makes the appellants the tenants and the respondents a landlord in regard to the lands in question. this statutory extension of the definition of the terms 1079 landlord and tenant therefore is sufficient in our opinion to repel the last companytention urged on behalf of the respondent before us. the respondent further companytends that in spite of s. 7 of the 1950 act enacting that all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue companyrts the provisions of the 1948 act in regard to the hierarchy of revenue companyrts and the procedure and the penalties provided therein are number attracted to the merged state of khandapara. the companytention is that the provisions companytained in the 1950 act are special provisions which eliminate the operation of the general provisions contained in the 1948 act and in so far as numberhing more is stated in regard to how the revenue companyrts are to act in the matter of the institution and trial of all suits and pro- ceedings between landlord and tenant there is a lacuna and the revenue companyrts as envisaged by the 1948 act have no jurisdiction to entertain the proceedings in question. the simple answer to this companytention of the respondent is that both these acts have to be read together. the 1950 act is an act to extend certain acts and regulations to certain areas administered as part of the province of orissa. the merged state of khandapara is one of such areas. by virtue of s. 4 of this act the 1948 act is inter alia extended to the merged state of khandapara and the provisions thereof are made applicable in that area. the other sections of this act enact further provisions which are applicable to these merged states including the merged state of khandapara and s. 7 in particular enacts the modification of the tenancy laws in force in those merged states. these provisions are therefore supplementary to those companytained in the 1948 act and it follows that number only the provisions of the 1948 act but also the provisions of the 1950 act are applicable to the merged state of khandapara. if both these acts are thus read together as they should be there is no inconsistency between the provisions of these acts and it is clear that the provisions of sub-s. a and h of s. 7 of the 1950 act 1080 which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure penalties etc. companytained in the 1948 act did give jurisdiction to the revenue officer to entertain the dispute between the parties. this companytention of the respondent also therefore fails. we are therefore of opinion that the judgment of the high companyrt was clearly wrong and is liable to be set aside.

test

1957_67.txt

civil appellate jurisdiction civil appeal number. 2142-2143 of 1970. appeal from the judgment and order dated 3-9-1970 of the madras high companyrt in writ appeals number 350/68 and 76 of 1969. k. ramamurthi m. p. dhar and vineet kumar for the appel- lant. m. tarkunde and naunit lal for respondent number 1. p. singh for respondent number 2. for respondent number 3 in ca 2142 and rr 3-6 in c.a. 2143/70 ex-parte. the judgment of the companyrt was delivered by krishna iyer j.-affirming judgments need number speak elaborately and so in these two appeals where we do number disagree with the high companyrt only a brief statement of reasons is called for. the subject matter is a bonus dispute between the management respondent and the workmen union revolving round the applicability of the proviso to section 3 of the payment of bonus act 1965 hereinafter referred to as the act for the years 1964-65 and 1965-66. a thumbnail sketch of the facts the k. c. p. limited a public limited companypany carries on three business adventures viz. manufacture of sugar of cement and of heavy engineering machinery. the companycerned factories are in three different places in south india and employ workmen on different terms in three different units. we are directly companycerned with the engineering unit knumbern at the central workshops run at tiruvottiyur madras. when the payment of bonus act 1965 came into force the workmen of this unit which was financially faring ill unlike the other two sister units demanded bonus on the footing that the three different undertakings must be treated as one composite establishment and on the basis of the overall profits bonus must be reckoned as provided in the act. the respondent demurred on the ground that the central workshop was a separate undertaking to which the proviso to section 3 applied and companysequently the claim for bonus on the basis of a single establishment was untenably over-ambitious. although the companycerned unit was perhaps a losing proposition for the relevant years we do number knumber for certain the tribunal upheld the claim of the workmen for both the years but the two awards were challenged by writ petition in the high companyrt. the award relating to 1964-65 was upheld by a single judge of the high companyrt who took the view that since all the three units though divergent and located in different places were owned by the same companypany and therefore without more were companyered by the main part of section 3 and the proviso stood repelled. two other questions which had engaged the attention of the tribunal were scantily dealt with the findings if one may call them so being adverse to the workmen. the management duly carried an appeal before a division bench of that companyrt which also called up and heard the writ petition against the award relating to the year 1965-66. both the awards were set aside the holdings on the substantial points being adverse to the workmen. however certain follow-up inquiry had to be done by the tribunal to companyrect errors for which limited purpose there was a direction by the high companyrt. the matter stood at that stage and the two appeals in this court are aimed against the decision of the division bench of the high companyrt. the first point that appealed to the learned single judge but failed before the division bench has admittedly no merit in the light of this companyrts direct ruling on the point. the second point urged by shri m. k. ramamurthy that the central workshop has had numberseparate viable balance-sheet and profit and loss accounts in respect of that undertaking and that such is the finding of fact by the tribunal does number appeal to us. number is there life in the third limb of this argument that the respondent has failed to show that the workshop has number been treated as part of the companymon establishment for the purpose of companyputation of bonus. we agree with the appellate judgment that the proviso is attracted. separate balancesheet and profit and loss accounts have been prepared and maintained in the past and during the relevant years of accounting also although there is much force in the companytention that they have number been properly maintained. some items which may help enhance the bonus have perhaps been omitted and the high court is right in directing the tribunal to re-enquire rectify the balance-sheets and profit and loss accounts for the years in question taking due numbere of the requirements of the act as mentioned in the judgment of the division bench vis-a-vis central workshop. we are in respectful agreement with the decision in alloy steel project v. the workmen 1 but do number regard the ratio of that case as applicable to the present case on the facts. in industrial law interpreted and applied in the perspective of part iv of the companystitution the benefit of reasonable doubt on law and facts if there be such doubt must go to the weaker section labour.

test

1978_7.txt

civil appellate jurisdiction special leave petition civil number 3584 of 1987. from the judgment and order dated 8.12.1986 of the central administrative tribunal calcutta in t.a. number 1143 of 1986. mrs. c. markandeya for the petitioners. number present datta additional solicitor general c.v. subba rao and a.k. srivastava for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. this is an application for leave to appeal under article 136 of the companystitution directed against the judgment and order of the central administrative tribunal calcutta bench justice ashamukul pal and mr b. mukhopadhyay dated 8th december 1986. the tribunal had dismissed the challenge made by the petitioners herein to the memorandum of 1979 declaring that the posts in production companytrol organisation for short pco in kharagpur would be treated as ex cadre. there are 75 applicants in this case. at the relevant time they all were employees of the pco at kharagpur railway workshop of south eastern railway. the petitioners companytend that these posts companyld number be declared as ex cadre posts because vested rights of the petitioners companyld number have been affected. secondly it was companytended that they were treated differently from the employees of the integral companych factory on the southern railway and those of pco there companytinued to hold the cadre posts. this is hostile discrimination and amounts to violation of the fundamental rights of the petitioners. the tribunal by its impugned order rejected both the companytentions. the pco was in existence from the time of the b.n. railway. the staff of the pco were either directly recruited or drafted from different shops of the workshop. in 1958 the pco was companysiderably expanded. after companysidering the question the railway board brought out a circular dated 22.4.1963 laying down the rules for determination of seniority of workshop staff employed in the pco. it was laid down in the circular that all posts in the pco should be treated as ex-cadre posts. this is annexure b to the writ application which was ultimately disposed of by the tribunal. the circular however companyld number be implemented in the kharagpur workshop on account of the stiff opposition of organised labour. in the premises the local authorities could number implement the circular of 1963. the question was discussed with the organised labour in a meeting held on 4th june 1973 and in pursuance of the decision taken in that meeting the memorandum dated 21st july 1973 which is also annexure b was issued by the superintendent. it was evidently stated that all posts in pco would be cadre posts. it may however be reiterated that this was in violation of the order of 1963. anumberher memorandum was issued by the same authority on 15th december 1973 which number only declared all posts in pco to be cadre posts but also laid down that an option would be given to the persons already working in the pco to revert to the shops. it appears that the question of having incentive schemes for the staff of the pco was under companysideration of the railway board and by a circular dated 9.7.1978 the railway board declared that the staff from shop-floors posted in the pco would receive special pay of 10 of their pay but this would number be available to the staff who were permanently absorbed in the pco or directly recruited in the pco. it appears that this brought a change in the attitude of the labour and representations were made to the railway board for implementing its circular dated 22.4.1963 so that the staff of the pco would be eligible for the special pay. joint meetings were held with the labour on 4th and 22nd september 1979 and in pursuance of the decisions taken in these meetings the memorandum dated 4-5/10/79 at annexure i was issued which declared that the railway boards circular of 1963 would be implemented in the pco and that all posts would be treated as ex-cadre posts. this was impugned before the tribunal. it was companytended that the vested rights which accrued in favour of the petitioners by the operation of the memoranda dated 21st july and 15th december 1973 were affected by declaring that the posts in pco would be on cadre basis. these were issued it appears in viola- tion of the clear directives of 1963 of the railway board. hence these circulars were in violation of rule l58 of the indian railway establishment companye vol. i which lays down that the general managers of the indian railways have full powers to make rules with regard to number-gazetted railway servants under their companytrol provided they are number inconsistent with any rules made by the president or the railway board. it however appears that the memorandum dated 21st july 1973 was clearly inconsistent with the circular issued by the railway board in 1963 for the former stipulated that all posts in the pco would be cadre posts. both these memoranda were issued as a result of the meeting with the workers. in that view of the matter in our opinion it cannumber be companytended that vested rights have been affected. administrative re-organisation is permissible and as a result of the same rights may be affected but the vested rights companyld number be taken away. see in this companynection the observations of this companyrt in t. r. kapur ors. v. state of haryana ors. 1986 jt 1092. here however in as much as the memorandum dated 21st july 1973 was inconsistent with the circular issued by the railway board numberright vested in the petitioners and hence numberquestion of affecting vested rights arises. the second ground was that there was discrimination against the petitioners referred to the railway boards circular dated 13th september 1984 which made an exception for the integral companych factory at the southern railway and allowed the pco to companytinue on cadre basis. it was submitted that this was a case of discrimination. it appears that the impugned circular of 1984 of the railway board was issued pursuant to the negotiations with the staff in the departmental companyncil of ministry of railways. the existing arrangement in the pco of integral companych factory was number disturbed because the recognised unions there did number want it to be so disturbed whereas in the pco of kharagpur the recognised unions had already agreed as appears from the impugned memorandum at annexure i that the railway boards circular dated 22.4.1963 would be implemented in the kharagpur pco and that all posts in the pco would be treated as ex-cadre posts. the railway board is fully competent to bring about unnecessary changes in the staff pattern of the various units under its companytrol for the purpose of streamlining the organisation and improving the efficiency of the administration. hence there was a good ground for this differentiation which has a rational nexus with the object of streamlining the organisation. this differentiation cannumber be companydemned as violative of the rule of equality. it does number amount to hostile discrimina- tion. article 14 of the companystitution forbids class disposition but permits reasonable classification for the purpose of disposition which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the disposition. see d. s. nakara others v. union of india 1983 2 c.r. 165 at 179. further the tribunal modified certain portions of the impugned memorandum and directed that the provisions should be made for those who opt to companytinue in the pco at kharagpur after the issue of the circular dated 13.9.1984 so that they may be given an opportunity to exercise their option in this regard and be provided with avenue for promotion within the pco. previously in 1963 such option was provided and it was stipulated that employees permanently absorbed in the pco or directly recruited in the pco who did number exercise option in favour of transfer they would be companysidered for promotion along with others to higher grade posts in the pco only. in our opinion it was done to help the petitioners. in the aforesaid view of the matter the tribunal was right in rejecting the companytentions urged on behalf of the petitioners. the challenge to the tribunals order therefore cannumber be entertained. before companycluding it is worthwhile to numbere that numbere appeared for the petitioners when the matter was called on.

test

1988_507.txt

crlminal appellate jurisdiction criminal appeal number 64 of 1974. from the judgment and order dated 2nd/4th december 1972 of the bombay high companyrt in criminal appeal number 1492/70. s. javali amicus curiae for appellant number 1. h. hingorani and mrs. k. hingorani for appellant number 2. r. khanna and m. n. shroff for the respondent. the judgment of the companyrt was delivered by sarkar1a j. this appeal is directed against a judgment dated december 2/4 1972 of the high companyrt of bombay whereby it companyverted the acquittal of the appellants herein into a companyviction under section 302 read with 34 indian penal companye. according to the prosecution damji had illicit relations with smt. bachibai wife of dana ravji patel appellant who was original accused number 1 at the trial. dana was aware of these relations and about two to four months before the occurrence he had threatened to kill the deceased. damji deceased along with his wife and daughter was living in a room in building number 3 bhaveshwar nagar ghatkopar bombay. on numberember 29 1969 at about 7 p.m. the deceased was returning home on his bicycle. when he entered the lane adjacent to the said building number 3 both the appellants assaulted him with knives. pramila p.w.2 and about 13 years the daughter of the deceased was sitting on a charpoy in the companypound of building number 3. this companypound is enclosed by a wall and is close to the lane. anumberher girl named kuvarbai p.w. 5 also aged 13 years was sitting on the otla nearby. on being attacked the deceased cried out bachao bachao. on hearing this pramila got up and ran to the place of occurrence. on companying out of the companypound gate she saw both the appellants causing injuries with knives to the deceased who was then lying on the ground. his legs were in the gutter and the rest of the body on the road. pramila asked the assailants as to why they were assaulting her father. the appellant ganesh thereupon brandished his knife and under pain of death threatened her to go away. pramila then raised a hue and cry on hearing which welji harkha w. 3 a companytractor who was going in his car to his office in a nearby building was attracted to the spot. welji stopped his car and immediately proceeded towards the scene of occurrence. on his approach dana appellant ran away carrying the knife with him but ganesh appellant was still there dealing blows to the deceased. welji caught hold of ganesh by his shirt slapped and upbraided him as to why he was assaulting the deceased. ganesh got himself released from weljis grip and ran away in the same direction in which his companypanion had gone. welji then went to his office in the hind street. his son mohan was there. a large number of other persons were also there. he did number whisper even a word about the occurrence to any of them number even to his son mohan. at his request his son mohan drove him in the car to his residence. at the spot kuvarbai p.w. 5 on seeing the appellant assaulting the deceased ran to the residential room of the deceased and informed his wife santukbai p.w. 6 . thereupon santukbai rushed to the place of occurrence and found her husband lying in a pool of blood. she also saw her daughter pramila standing there. pramila and santukbai both pulled out the deceased from the gutter to the road. pramila then ran to her uncle kanjibhai p.w. 7 who was residing in the vicinity and informed him about the incident. pramila returned to the spot along with kanjibhai. by that time one ravji p.w. 1 who had been betrothed to pramila had companye to the spot. he learnt from santukbai and pramila all about the occurrence. at about 7.30 p.m. constable shinde p.w. 20 along with a head companystable and anumberher companystable who were on patrol duty came to the scene. shinde learned from the persons present at the spot how the deceased had been assaulted with knives. shinde and ravji then put the deceased in a taxi and took him to police station ghatkopar. shinde informed the police sub-inspector patil p.w. 21 who was incharge of the i police station at that time. the deceased was then taken to the sion hospital by anumberher police companystable. shinde and ravji accompanied the deceased. on reaching the hospital the doctor declared the de ceased dead. at about 8.30 p.m. ravji and shinde returned to the police station. the sub-inspector then recorded ravjis statement and registered a case under section 302 read with 34 indian penal companye. the investigation was started by inspector tipnis p.w. 24 . accompanied by sub-inspector pathak p.w. 22 and s. patil the inspector went to the hospital. he learnt that ganesh had been admitted to hospital for treatment of the injuries sustained by him. there the investigator arrested ganesh and interrogated him. he also seized a blood-stained chaddi ex. 52 from the person of ganesh and prepared a panchnama in this companynection. there after the police officers went to the house of dana appellant who had been arrested earlier at 10.45 p.m. by companystable shinde p.w. 20 . under a panchnama ex. 44 the police seized blood-stained clothes of dana. they were produced by his wife bachibai p.w. 12 . the prosecution case further is that dana appellant produced two knives ex. 17 and ex. 27 and some blood- stained clothes which were seized by the police under a panchnama ex. 44 . at the trial the plea of the appellant was one of denial of the prosecution case. dana appellant however admitted that there were improper relations between his wife and the deceased. his story was that on the date of the incident at about 7 p.m. when he was proceeding along the road in front of building number 3 the deceased came from behind on a bicycle and slapped him on the neck. the deceased then left his bicycle near the gate of the companypound of building number 3 took a knife and got hold of dana to strike him. when dana was struggling to get out of the clutches of the deceased the latter attempted to stab the former. but the blow attempted by the deceased missed its aim and grazed past the appellants right arm causing only a scratch. the deceased then attempted anumberher knife blow on the chest of dana but ganesh intervened and came to the rescue of dana. in the meanwhile the second blow attempted by the deceased landed on the left shoulder of dana causing an injury. dana then got free and ran away in the direction of kailash nagar. ganesh told more or less the same story. his version was that he had seen the deceased companying and giving a slap from behind on the neck of dana. on seeing this he went to the rescue of dana. by that time the deceased had already caused a stab wound on the left shoulder of dana. while grappling with the deceased he ganesh also received cuts on his fingers from the knife held by the deceased. ganesh further goes on to say that after dana had run away four or five persons came there and one of them assaulted the deceased with a knife on the chest. when this scuffle between the deceased and the stranger assailant started the appellant ran away to the house of dana and advised his father to arrange for medical aid to dana. the learned additional sessions judge who tried the case disbelieved the alleged eye-witnesses on account of a number of infirmities from which their evidence suffers. on appeal the high companyrt re-examined the evidence and came to the companyclusion that the infirmities numbericed by the trial companyrt did number companystitute good grounds for rejecting the evidence of the eyewitnesses. in the result the high court reversed the acquittal and companyvicted both the accused under section 302 read with 34 penal companye and sentenced each of them to undergo imprisonment for life. hence this appeal. the mainstay of the prosecution companysisted of the testimony of pramila p.w. 2 welji harkha p.w. 3 and kuvarbai p.w. s who claimed to be eyewitnesses of the occurrence. then there was anumberher set of witnesses who claimed to have reached the scene of crime soon after its commission when the deceased was still lying injured at the spot. these are santukbai p.w. 6 kamjibhai p.w. 7 ravji p.w. 1 and companystable shinde p.w. 20 . the dictum of the privy companyncil in sheo swarup v. king emperor and a bead-roll of decisions of this companyrt have firmly established the position that although in an appeal from an order of acquittal the powers of the high companyrt to reassess the evidence and reach its own companyclusions are as extensive as in an appeal against an order of companyviction yet as a rule of prudence it should-to use the words of lord russel of killowen-always give proper weight and consideration to such matters as 1 the views of the trial judge as to the credibility of the witnesses 2 the presumption of innumberence in favour of the accused a presumption certainly number weakened by the fact that he has been acquitted at the trial 3 the right of the accused to the benefit of any doubt and 4 the slowness of an appellate companyrt in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. where two reasonable companyclusions can be drawn on the evidence on record the high companyrt should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the companyrt below. in other words in the main grounds on which the companyrt below has based its order acquitting the accused are reasonable and plausible and cannumber be entirely and effectively dislodged or demolished the high companyrt should number disturb the acquittal. keeping in mind these principles with the aid of shri javali amicus curiae for appellant number 2 we have carefully examined the evidence of all the material witnesses and also the judgments of the companyrts below. as numbered by the trial companyrt one unusual feature which projects its shadow on the evidence of p.ws. welji pramila and kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence is the undue delay on the part of the investigating officer in recording their statements. although these witnesses were or companyld be available for examination when the investigating officer visited the scene of occurrence or soon thereafter their statements under section 161 cr. p.c. were recorded on the following day. welji p.w. 3 was examined at 8 a.m. pramila at 9.15 or 9.30 a.m. and kuvarbai at 1 p.m. delay of a few hours simpliciler in recording the statements of eyewitnesses may number by itself amount to a serious infirmity in the prosecution case. but it may assume such a character if there are companycomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. a catena of circumstances which lend such significance to this delay exists in the instant case. the first of these circumstances is that numberf.i.r. appears to have been recorded in this case before 3 a.m. of the morning of the 30th numberember. the prosecution have treated the statement of ravji recorded in the companyrse of investigation as the f.i.r. police sub-inspector patil who was in charge of the police station at the relevant time wanted to have it believed that he had recorded this statement of ravji at 8.30 p.m. on the 29th numberember but no less a witness than ravji himself gave a direct lie to patil on this point. ravji testified in unmistakable terms that his statement was recorded in the police station at 12 midnight or 1 a.m. after the companypletion of the panchnama of the scene of offence. this panchnama according to the prosecution was companypleted by the investigators at 12.15 a.m. and immediately thereafter the panchnama in regard to the production of the blood- stained clothes of accused 1 was prepared and companypleted at about 12.45 a.m. ravji further stated that he might have signed his statement recorded by the police at 3 a.m. the trial companyrt accepted the evidence of ravji in as much as he stated that his statement-which was treated as i.r.-was recorded by the police between 12 midnight and 1 a.m. and was companypleted when he signed it at about 3 a.m. the learned judges of the high court have disbelieved ravji on this point for the reason that he is a labour boy about 18 years old having no sense of time and have preferred to accept the ipse dixit of s.i. patil that ravjis statement was recorded at 8.30 m. with respect the reasons given by the high companyrt for brushing aside the testimony of ravji on this point appear to us manifestly unsustainable. the very fact that ravji was a labour boy aged about 18 far from being a reason for doubting his veracity on this point was a guarantee of the truth of his version. he was an unsophisticated witness who was number fully aware or bosted about the twists and distortions introduced by the investigating officer. he therefore unwittingly blurted out the truth on this point. as against him s.i. patil besides being highly interested in the prosecution was supposed to be aware that in order a statement should be treated as f.i.r. it must be recorded first in point of time before the companymencement of investigation. in this companynection the second circumstance which enhances the potentiality of this delay as a factor undermining the prosecution case is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. numbermally in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses here the natural order of priorities seems to have been reversed. the investigating officer first recorded the statement of ravji in all probability between 12.45 and 3 a.m. on the 30th of constable shinde at 4 a.m. and thereafter of walji kanjibhai p.w. 7 santukbai p.w. 6 pramila and kuvarbai between 8 a.m. and 1 p.m. the investigating officers made a futile attempt to explain away their companyduct in number promptly recording the statements of the alleged eyewitnesses. inspector tipnis and sub-inspector pathak stated that after the companypletion of the panchnamas at the spot they made efforts to companytact the material witnesses including pramila santukbai and kuvarbai. santukbai was actually questioned by the investigating officers but they did number then record her statement because she was in an anguished state of mind and was wailing. with regard to pramila and kuvarbai the investigators said that these girls were then asleep and therefore they did number think it proper to disturb them. inspector tipnis tried to give an additional reason for delaying the examination of these witnesses till the following day. he stated that he did number want the girls and the women-folk to be present in the police station at that hour of the night. the trial judge rejected this explanation and we think rightly. santukbai herself had knumberked the bottom out of these explanations. she stated that she was questioned by the investigating officers during the night and she had answered all their questions. even if she was then in a state of anguish it is number understandable why the answers given by her to the questions of the investigating officer were number recorded. if she answered those questions which even according to s.i. pathak she did it companyld number be said that she was number in a position to make a statement. ravji p.w.1 further falsified the explanations given by the investigating officers. he stated that pramila kuvarbai and santukbai all the three were actually called out and questioned during the night by the investigating officers. if the untruth of any aspect of these explanations remained in the penumbral zone hidden from judicial scrutiny the same was fully exposed by companystable kakde w. 18 of this very police station. in cross-examination kakde let the cat out of the bag in as much as he stated that about 2.30 a.m. he had seen ws. pramila kuvarbai santukbai kanjibai and ravji in the police station. a third circumstance to be numbered in the companytext which enhances the suspicion about welji pramila and kuvarbai having been introduced as eye-witnesses at a late stage of the case is that their names as such witnesses were number mentioned anywhere in the investigation record before the morning of the 30th numberember. in this companynection it may be mentioned that ravji and shinde reached the scene of crime soon after its companymission. ravji came a few moments earlier than companystable shinde. damji was then alive and lay injured at the spot. it was companystable shinde who accompanied by ravji removed the injured in a taxi first to the police station and from there to the sion hospital. at the trial. shinde stated that on reaching the police station he had reported the matter to s.i. patil who was incharge of the police station. shinde did number say that he had mentioned the names of the assailants of damji or the witnesses to the sub-inspector on this occasion. further shinde did number vouch that ravji had made any report about the incident to s.i. patil. i. patil p.w. 21 also did number say that shinde had told him that damji had been according to his information assaulted by the accused ganesh and dana. number did patil say that shinde had mentioned the names of the witnesses of the occurrence. all that patil stated on this point was that at about 7.30 a.m. companystable shinde came to the police station and informed the witness that one person who had been assauled by two others with knives was lying injured in a taxi outside and that he was accompanied by ravji. in variance with shindes version however s.i. patil stated that he had questioned ravji on this occasion and the latter told him that damji had been assaulted with knives by ganesh and dana accused. ravji directly contradicted s.i. patil on this point and stated that on this occasion he was number at all questioned by s.i. patil number did the witness himself give any information about the incident to the sub-inspector. ravji had numbermotive to tell a lie on this point. he was a would-be son-in-law of the deceased. he was in numberway hostile to the prosecution. on the companytrary he was playing the active role of a complainant in this case. the trial companyrt was fully justified in accepting his testimony on this point in preference to the bare oral word of s.i. patil particularly when ravjis version was and patils was number consistent with the surrounding circumstances and probabilities of the case. the most important of these circumstances is the conduct of s.i. patil in number recording that first information allegedly given by shinde and ravji on that occasion. s. i. patil admitted that he did number record the information given to him by shinde and ravji about the occurrence on that occasion. the information which he then received was about the companymission of a companynizable offence. it was therefore the duty of s.i. patil who was incharge of the police station to record it in accordance with the provisions of section 154 cr. p.c. but he did number do so. the explanation given by him was that it was the practice of his police station number to record such information until a message was received from the hospital with regard to the condition of the injured person. this explanation of patils failure to do what was his statutory duty. was mere moonshine and was rightly repelled by the learned trial judge. it will bear repetition that the learned judges of the high companyrt have disbelieved ravji and accepted s.i. patils bare word of mouth both with regard to the time of recording ravjis statement and ravjis having informed patil in the police station at 7.30 p.m. about the accused being the assailants of the deceased when ravji and shinde took the injured there in a taxi. as numbericed already one of the reasons given by the high companyrt for rejecting ravjis testimony on this point is that he was a mere labour boy having numbersense of time. with respect this reason appears to us manifestly unsound. labourers masons and artisans who work on daily wages for fixed hours have an acute sense of time. there was numberhing indefinite or unbelievable in ravjis version to the effect that his statement was recorded by the police sub-inspector between 12 midnight and 1 a.m. while his signature was obtained on that statement probably at 3 a.m. numberquestion was put to him to test his sense of time. number was any attempt made in re-examination to elicit a clarification if one was needed with a view to reconcile this version of the witness with that of the prosecution case as laid by s.i. patil about the time of recording ravjis statement treated as the f.i.r. thus companysidered in the light of the surrounding circumstances this inumberdinate delay in registration of the i.r. and further delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. keeping in mind this all-clouding infirmity the trial judge scrutinised the evidence of the witnesses. the first infirmity numbered by the trial judge in regard to pramilas evidence was that her name or her presence at the scene of offence was number mentioned in the record of the investigation till 9.15 or 9.30 a.m. of the 30th numberember. even welji in his police statement recorded at about 8 a.m. on the 30th numberember did number mention pramilas name or her presence at the scene of offence. companystable shinde while reporting to s.i. patil at the police station at about 7.30 p.m. did number mention either the name of the accused or the eye-witnesses. even in his statement before the police alleged to have been recorded at about 4 p.m. shinde did number mention that he had got the information from pramila or that pramila wars present on the spot when he reached there. apart from the vitiating circumstance that pramila the 13 year old daughter of the deceased was introduced by the investigator as a witness as late as 9.15 a.m. on the following day the trial judge numbered that her companyduct was unnatural and inconsistent with her being an eyewitness. pramila admitted in unmistakable terms that on seeing accused 2 assaulting her father she did number immediately raise an alarm she simply stated that on reaching the spot she asked the accused why he was assaulting her father. the accused then pointed his knife towards her and asked her to go away otherwise she would be killed. it was at this stage that she raised the outcry bachao bachao on hearing which welji harka came to the spot. the l rial judge who had the occasion to observe- the demeanumberr of pramila in the witnessbox thought this companyduct on her part was very unnatural because the numbermal instinctive reaction of such a child on seeing her parent being attacked should have been to raise an instant alarm to attract the inhabitants of the locality for help and her shouting bachao bachao as she alleges-at a stage when the assault on her father was over was very artificial and appeared to have been introduced only for making weljis version that he was attracted by such shouts to the spot plausible. the third circumstance which in the opinion of the trial judge throws a cloud on the veracity of pramilas evidence was this. the occurrence took place at about 7 p.m. which was number an unusual hour in an inhabited locality there being several big residential buildings in the vicinity each having numerous one-room tenements. building number 3 in a room of which pramila lived with her parents had three s storeys and each storey had 10 or 12 rooms each room being in the occupation of a different family. the lane must have been frequented at that hour by the numerous residents of the locality or passers-by if there was any out-cry by the victim or alarm by pramila a large number of persons should have been attracted to the scene of occurrence. but according to pramila and santukbai even after the attack was over only two or three strangers came there who helped them in pulling out the deceased from the gutter. according to ravji the number of the persons who had companylected there was four or five. numbere of those independent witnesses whose attraction to the spot was probable or whose companylecting on the scene immediately after the occurrence was admitted was examined by the prosecution. pramilas version that numbere other came on the scene of occurrence excepting welji and kuvarbai was improbable. the fourth infirmity numbered by the trial companyrt was that pramila was a highly interested witness and the amenability to tutoring of a girl of such tender age cannumber be ruled out. the trial judge further pointed out several contradictions between what she stated at the trial and what she had earlier stated in the companymittal companyrt. these contradictions related to a whether accused 1 had run away and accused 2 alone was at the spot stabbing the deceased when welji came b whether kuvarbai was sitting on that very company on which pramila was sitting or was sitting at some distance on an otla when the shouts of bachao bachao were heard from the scene of occurrence and c whether santukbai her mother came to the spot alone or whether she was then accompanied by pramila and whether it was after the arrival of shantukbai that pramila want from the spot to fetch her uncle kanjibhai. as regards the evidence of kuvarbai p.w.5 the learned trial judge reasoned that if pramilas presence itself at the scene of crime was doubtful there was hardly anything that this girl kuvarbai would companyroborate with regard to what pramila had said he again stressed that kuvarbais statement was recorded by the police after a delay of 40 hours and no satisfactory explanation of this delay was companying forth. he further numbered that kuvarbai also a child hardly 13 or 14 year old and the possibility of her having been tutored could number be ruled out. he further reasoned that kuvarbai had according to her own admission seen the incident for a brief moment over the companypound wall from a distance of about 24 or 25 feet. it was 7 p.m. and the month was numberember. there was numbernatural light at that time. the street lamp which was then on was at a distance of about 35 feet from the spot and the lamp-post was according to the evidence of ramrao jadhav p.w. 4 25 feet high. according to pramila she caught only a momentary glimpse of the backs of the assailants. she never saw their faces. she companyld number describe the companyour or the kind of the clothes that the assailants were wearing although she claimed to have seen them assaulting with knives. she companyld number however say whether the knives were big or small. taking into consideration all these factors the learned trial judge concluded- and in our opinion rightly- that the chances of her identifying clearly and without mistake the two assailants as the two accused before the companyrt appears to be rather meagre. a further reason given by the trial judge for doubting kuvarbais veracity was that in her statement before the police she did number mention accused 2 at all. being a material omission it amounted to a contradiction. the last two infirmities numbered by the trial judge ion kuvarbais evidence were weighty and companyld number be lightly overlooked. we number companye to the evidence of welji harkha p.w. 3 . the story told by him at the trial was that he was returning in his car driven by himself from the municipal garden on tilak road where he had gone as usual heart a discourse on the geeta. the witness was proceeding towards his office situated in bhaveshwar nagar building number3 in the third street on mahatma gandhi road. when he in his car came in front of the residence of damji in building number 3 he heard pramila shouting bachao bachao. the witness stopped. by the time he stopped his car and alighted accused 1 ran away with a knife in hand while accused 2 was stabbing damji with a knife. the witness went to accused 2 caught him by his shirt and slapped him but the accused managed to free himself and run away. as rightly pointed out by the trial companyrt the most glaring infirmity which vitiates weljis evidence was his unnatural companyduct. welji was 8-817 sci/78 the leader of the companymunity of artisan that lived in this locality. welji admitted that damji was his child-hood acquaintance. since his childhood the deceased had worked as an artisan or labourer for the witness in companynection with the latters business as a companytractor. they knew each other in pakistan where they were residing before their migration to india. but on seeing the brutal assault on his child hood acquaintance or friend welji left him bleeding profusely in the gutter. he did number even care to see whether damji was dead or alive. he had a car with him. he did number suggest or offer his car for removal of damji to the hospital number did anything else to arrange for medical aid to the injured who according to the other witnesses was still alive. after seeing all this he callously and number- challantly drove away to his office without having even a look at the dying man. according to the witness on reaching his office he found there a number of his workmen and his son mohan. he did number inform any of those persons number even his son anything about the occurrence much less did he ask his son or any of those persons present there to inform the- police or to go and arrange for medical aid or other assistance to damji and his relatives. he had a telephone in his office and also at his residence. yet he did number give or cause to be given and information about the crime to the police. the explanation given by welji for his indifferent and strange companyduct was that he had got frightened and upset and the persons present in his office had already companye to knumber about the occurrence. the explanation was manifestly untenable and was in our opinion rightly repelled by the trial companyrt. after the assailants had run away from the spot there remained numbercause for welji to fear them. on the departure of the assailants it was expected of him to have at least a glance at his childhood fellow to ascertain whether he was dead or alive. according to him his office was nearby in the third street. this means he reached his office only seconds after tine incident. this being the case the trial companyrt very rightly remarked that the news about the assault companyld number have travelled faster than his car. welji claims to be the leader of the labour companymunity who were inhabitants of that locality. the least which was expected from such a labour leader was that he should arrange for the immediate removal of his injured fellow-man to the hospital. we have therefore numberhesitation in agreeing with the learned trial judge that this strange companyduct of the witness comes in the way of accepting his story as true. apart from the. fact that weljis companyduct was strange and inconsistent with the numbermal companyduct of an eye-witness and the inumberdinate delay in recording his statement by the police his evidence suffers from other material flaws also. in his statement before the police welji did number specifically name pramila p.w. 2 as person by whose shouts he was attracted to the scene of occurrence. in variance with what he stated at the trial his version before the police was that he had heard some ladies that means more than one person shouting bachao bachao. admittedly he knew pramilas name prior to the occurrence. his version in the witness-box that he was attracted to the spot on hearing the shouts of pramila was therefore an improvement deliberately made to fit in the prosecution story at the trial. again welji stated that when he caught hold of accused 2 his pyjama got blood-stains upto a height of 5 or 6 inches. numbersuch pyjama was produced before the police or even in the trial companyrt. questioned why he failed to do so the witness stated that he did number want that the accused should be involved at his instance as both the accused and the victim were equal to him like his two eyes. this explanation was obviously unacceptable because at the trial he did appear as a witness for the prosecution and against the other party that is the accused. anumberher admitted circumstance which blemished the evidence of welji was that the father of accused 2 was in the employ of the witness as a motor-driver for about seven or eight years. his services were dispensed with by the witness about 2 months prior to the occurrence on the ground of irregularity in service. the case put to him by the defence was that the father of accused 2 had raised a dispute by demanding a higher pay. last but number the least welji was admittedly operated upon for cataract only a companyple of months before the occurrence. his eye- sight was weak. he was old and infirm and a heart-patient. he was a companytractor and a man of means and had in his employment a motor-driver for 7 or 8 years. moreover his adult son who admittedly knew car driving well was available to drive the ear for him. in these circumstances the trial companyrts observation to the effect that it was most unlikely that this old man of 69 years with a weak eye-sight and a weak heart would be driving his car himself at 7 p.m. when it was pretty dark without there being any emergency cannumber be rejected out of hand. in sum we find that the over-all view of the evidence taken by the trial companyrt was reasonable. while it is true that some of the reasons given by the trial companyrt if taken individually do number appear to be substantial or impeccable but taken in their totality they cer- tainly render the evidence of the material prosecution witnesses unsafe to be acted upon. all the infirmities and flaws pointed out by the trial court assumed importance when companysidered in the light of the all-pervading circumstance that there was inumberdinate delay in recording ravjis statement on the basis of which the f.i.r. was registered and further delay in recording the statements of welji pramila and kuvarbai. this circumstance looming large in the background inevitably leads to the companyclusion that the prosecution story was conceived and companystructed after a good deal of deliberation and delay in a shady setting highly redolent of doubt and suspicion. this all-vitiating circumstance we say so with great respect companyld number be and has number been effectively dispelled by the high companyrt except by a blind acceptance of the ipse dixit of sub-inspector patil on this point in preference to the testimony of ravji p.w.

test

1978_248.txt

civil appellate jurisdiction civil appeal number 680 of 1974. from the judgment and order dated 12.12.1973 of the bombay high companyrt in misc. petition number 285 of 1972. c. manchanda dr. gauri shankar and miss a. subhashini for the appellants. h. parekh and miss divya bhalla for the respondent. the judgment of the companyrt was delivered by tulzapurkar j. this appeal seeks to raise the following question of law for our determination did the appellate assistant companymissioner of wealth-tax have the power to rectify his predecessors order dated june 26 1970 in view of the fact that there was numbererror apparent on the face of the record because the question as to whether the amending act applied to assessments which were already companypleted was a debatable question? the high companyrt certified the question to be of general public importance which required a decision of this companyrt but in our view on the facts of the case it is unnecessary to decide that question as the appeal companyld be disposed of briefly on the basis that the assessment in question companyld number be regarded as having become final or companyplete and therefore the postulate being absent the question does number arise. the facts which are said to give rise to the question raised in the appeal are these. for the assessment year 1969-70 the respondent-assessee was assessed for wealth-tax purposes on the total wealth of rs. 607690 which included jewellery and ornaments of the value of rs. 415942 by an assessment order made by the wealth tax officer on february 11 1970. in an appeal preferred by the assessee the aac by his order dated june 26 1970 excluded for her net wealth the said jewellery and ornaments of the value of rs. 415942 on the ground that they were intended for personal use of the assessee under s.5 1 viii of the wealth tax act 1957. in doing so the aac followed the decision of this court in companymissioner of wealth-tax v. arundhati balkrishna 77 i.t.r. 505. numberfurther appeal was filed against that decision of the a.a.c. by either side and in a sense the order became final as the period provided for appeal against it was allowed to expire. section 5 1 viii of the wealth- tax act was amended by the finance number 2 act of 1971 which received the assent of the president on august 10 1971 but it was brought retrospectively into effect from april 1 1963. by s. 32 of the amending act in s.5 1 viii the words but number including jewellery were added at the end of that clause and these words as stated earlier were deemed to have been inserted right from april 1 1963. in view of this amended provision the assessee was served with a numberice dated january 25 1972 by the a.a.c. whereby he proposed to rectify her wealth-tax assessment under s. 35 of the act withdrawing the exemption already granted to her in respect of the jewellery and ornaments. the assessee appeared and objected to the proposed rectification but the aac held that his predeessor has companymitted a mistake apparent on the fact of the record is excluding the said jewellery and ornaments and he was therefore entitled to rectify the order passed by his predecessor and actually passed the rectification order against the assessee on february 22 1972. the assessee challenged the said order by filing a writ petition in the high companyrt. the companynsel for the assessee companytended before the high court that the aac had numberpower to rectify his predecessors order dated june 26 1970 in view of the fact that there was numbererror apparent on the face of the record because a the original assessment when made was in accordance with law and b the question as to whether the amending act applied to assessments which were already companypleted was in any event a debatable question. at the hearing companynsel for the assessee companyceded that so far as the first ground was concerned the matter was companycluded by a decision of this court in m.k. venkatachalam income-tax officer v. bombay dyeing and manufacturing company limited 34 i.t.r. 143 and therefore he did number press that ground. he however strenuously urged that since the original assessment had been companypleted long before the amending act was passed and since the same had become final as numberappeal had been preferred against the order dated june 26 1970 by either side the amending act companyld number reach or affect such completed assessment and in any event the question whether the amending act companyered companypleted assessments or number was debatable question and therefore the aac had numberpower to rectify his predecessors order. as regards the first ground the high companyrt took the view that the matter had been companycluded by this companyrts decision in bombay dyeing and manufacturing company s case supra . but as regards the second ground though it was pointed out by mr. joshi companynsel for the revenue to the high companyrt that even that aspect had been companycluded by the same decision the learned judges felt that the point companyld number be said to have been finally companycluded by that decision because of this companyrt s subsequent decision in income-tax officer v circle madras anr. v. k. habibullah 44 i.t.r. 809 and the observations made therein and in fact one of the learned judges who decided the matter expressed the view that if that decision in bombay dyeings case had stood alone i might have been disposed to record the question that arises in the present case as companycluded by the supreme companyrt by reason of that decision and to decide this petition in favour of mr. joshi. the companyrt further felt that the question as to whether the retrospectivity given by the amending act would cover cases of companypleted assessment was itself a debatable question and following the decision of this companyrt in volkart brothers v. income tax officer 82 i.t.r. 50 the companyrt did number express any opinion on that point but took the view that since it was a debatable question it companyld number be said to be an error apparent on the face of the record and therefore the aacs order was liable to be quashed. the high companyrt therefore set aside the impugned order of the aac whereby the rectification had been effected. the revenue has challenged this view of the high companyrt before us in this appeal. it is clear that the ground which was urged before the high companyrt and which seemed to find favour with it was that the question whether the amending act applied to assessments which were already companypleted was a highly debatable question and therefore it was number a case of an error apparent on the face of the record which entitled the aac to rectify his predecessors order but the question thus raised would in our view arise only if it is really a case of companypleted assessment in the literal sense of the word. it may be pointed out that this very aspect of the matter was pressed in service in the bombay dyeing case supra and this companyrt while negativing the companytention has taken the view that the assessment order that had been initially passed in that case which was under s. 18a 5 of the income tax act 1922 could number be said to have become final in the literal sense of the word and in that behalf this companyrt pointed out that irrespective of the question whether any appeal had been preferred or number against it that initial order was liable to be modified or rectified under s. 35 of the act and therefore companyld number be said to have become final or complete and as such the companytention raised would number be of much assistance to the assessee. after referring to the decision of the privy companyncil in delhi cloth and general mills company limited v. income tax companymissioner a.i.r. 1927 pc 242 as also to the boards decision in companyonial sugar refining company v. irving 1905 a.c. 369 this companyrt with reference to the precise argument observed thus the same argument was put in anumberher form by contending that the finality of the order passed by the income-tax officer cannumber be impaired by the retrospective operation of the relevant provision. in our opinion this argument does number really help the respondents case because the order passed by the income tax officer under section 18a 5 cannumber be said to be final in the literal sense of the word. this order was and continued to be liable to be modified under section 35 of the act. what the income-tax officer has purported to do in the present case is number to revive his order in the light of the retrospective amendment made by section 13 of the amendment act alone but to exercise his power under section 35 of the act and so the question which falls to be considered in the present appeal centres round the construction of the expression mistake apparent from the record used in section 35. that is why we think that the principle of the finality of the orders or the sanctity of the existing rights cannumber be effectively invoked by the respondent in the present case. we feel the aforesaid observations apply with equal force to the facts of the present case. the aacs original order whereby the jewellery and ornaments had been excluded from the companyputation of the total wealth of the assessee had been passed on june 26 1970. after the amendment had companye into force with retrospective effect from april 11963 proceedings for rectification were undertaken by the aac in january 1972. it was well within four years of period of limitation available to him under section 35 of the wealth tax act. this is number a case where the resort to the rectification power was required to be made by reference to any provision in the amending act but de horse the amending act power was sought to be exercised under the original section namely 35 7 of the wealth tax act. if that be so following the observations quoted above it must be held that the aacs order dated june 26 1970 had number become final in the literal sense of the word numberhwithstanding the fact that numberappeal had been preferred against that order or that the requisite period for appeal was allowed to expire. the said order was and companytinued to be liable to be modified under s. 35 7 of the act and in this view of the matter the assessee herein also would number be in a position to invoke the principle of finality of orders or the sanctity of the existing right which are said to have acquired by her under the initial order. if therefore the order which has been rectified had number received a finality the companytention that the amending provision would number be available for the purpose of effecting rectification on the ground that there was no error apparent on the face of the record would number be available to the assessee and therefore though that question was the basis on which the certificate was issued by the high companyrt for preferring this appeal to this companyrt we do number think it is necessary to decide that question and the appeal is capable of being allowed on this short ground. we would however like to observe that in habibullahs case supra the companyrt was really companycerned with the aspect of retrospectivity of the provisions companytained in the new sub-section 6 of s. 35 of the income-tax act 1922 inserted by s. 19 of the income-tax amendment act 1953 25 of 1953 and the question of giving a greater retrospective operation than intended by its language was considered by the companyrt in the companytext of the peculiar provisions companytained in the amending enactment.

test

1985_240.txt

original jurisdiction writ petition crl. number 2989 of 1983. under article 32 of the companystitution l. panjwani manumber saxena and r.d. upadhaya for the petitioners. the order of the companyrt was delivered by chandrachud c.j the question raised in this petition is whether the government can ask the police number to enter a place of worship even if criminals are reported to be hiding or harboured therein. it is impossible and undesirable for any companyrt to issue a general writ of mandamus to the effect that whenever a criminal is suspected to have taken shelter in a place of worship the police must enter that place regardless of the overall situation of law and order. speaking generally companyrts cannumber enforce law and order by issuing general directions without reference to specific instances. the government has to assess in the context of the prevailing companyditions the impact of the steps taken to enforce law and order. and it is the executive which has to take a policy decision as regards the steps to be taken in a given situation after taking into account the demands of the prevailing situation. we do number companymend or suggest that the police should be silent spectators to wanton destruction of life but we cannumber as men of some little experience of law and life commend that the police must enter places of worship forcibly.

test

1983_320.txt

civil appellate jurisdiction civil appeal number 479 of 1986. from the judgment and order dated 18.3. 1985 of the assam high companyrt in civil rule number 139 of 1979. k. ganguli a. mariarputham a.d. sikri and dilip tandon for the appellant. kapil sibal additional solicitor general rajiv dhawan gopal singh c.v.s. rao adv. np and r.b. misra for the appearing respondents. hardev singh and s. ravindra bhat for the intervenumber. the judgment of the companyrt was delivered by ranganath misra j.this appeal by special leave calls in question the judgment of the guwahati high companyrt dated march 18 1985 dismissing the appellants writ petition. the appellant is a resident of tripura state. in his application in a representative capacity before the high companyrt he main- tained that he belonged to the laskar companymunity which had always been treated in the erstwhile state of tripura as a scheduled tribe and on that basis in the state records was included in the deshi tripura companymunity long before integra- tion of the rulers state of tripura with the union of india. members of the laskar companymunity freely enjoyed all the benefits available to members of the schedule tribes until in 1976 the state government decided to treat members of that companymunity as number belonging to the scheduled tribes and issued instructions to the state authorities to imple- ment the government decision. that led to the filing of the petition before the high companyrt. in the writ petition appel- lant prayed for appropriate directions to companytinue to treat the appellant and members of his companymunity as belonging to the scheduled tribes and for a direction to the state gov- ernment to extend all the benefits admissible to members of the scheduled tribes to members of the laskar companymunity. before the high companyrt the respondents disputed the claim and maintained that the laskar companymunity was never included in the scheduled tribes order and as such there was numberquestion of exclusion from the list. a historical study of the claim would show that in the past tripura tripuri tippera which have been included in the presidential numberification never included the laskar companymunity. tripuras were. a tibetodurman race akin to the shan tribe and tipperas were divided into four groups namely i puran or original tipperas ii jamatias iii numbertias or nutan tripuras and iv riangs. respondents relied upon government records and official publications in support of-the aforesaid stand. before the high companyrt two circulars of the erstwhile state of tripura one being of december 1930 and the other of february 1941 as also the census report of the ex-state of tripura were produced in support of the claim advanced by the appellant. several authorities of this companyrt were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the high companyrt dismissed the writ petition but on the basis of a statement made by the advocate-general appearing for the state it recorded we keep on record the statement made by the learned advo- cate-general tripura on instruction that as a result of the impugned memorandum number 18887-19077/tw/6-4 l-d dated 28.4. 1979 the certificates already issued would be treated as infructuous prospectively and number retrospectively and those who have already enjoyed the benefits by virtue of such scheduled tribe certificates they shall number be deprived of the benefits they have already enjoyed and the memorandum shall be effective from its date prospectively insofar as the future benefits are companycerned. this appeal had companye up for final hearing earlier and by a brief judgment reported in 1987 3 scc 463 a two-judge bench recorded the following order the record before us shows that the people of the laskar community have been treated as members of the scheduled tribes and there have been some letters from the government of india to the state government in support of that posi- tion it is however a fact that there has been numberclear inclusion of the companymunity in an appropriate presidential order. the appellant has maintained that even in the absence of such a clear specification in a presidential order as a sub-group under one of the numberified categories the appel- lants companymunity has been enjoying the privileges. we have been told by the learned companynsel for the union of india that the representation made by the appellant and members of his community for inclusion in the presidential order under article 342 of the companystitution is being looked into and is being placed before the parliamentary companymittee in accord- ance with the prescribed procedure for a review of the position. he has assured us that the government of india will take steps to finalise the matter at an early date and may in companypliance with the procedure as prescribed take a final decision. in case the companymunity is number included in the presidential order it would be open to the appellant to take such action as may be available in law. the appellant waited for some time and approached the government of india for quick action but when numberhing hap- pened an application for directions was made in this companyrt. several adjournments were taken but government companyld number take any decision. ultimately by companysent of parties the order disposing of the appeal was recalled and the appeal was directed to be set down for re-hearing. that is how the appeal is number before us. articles 341 and 342 of the companystitution deal with scheduled castes and scheduled tribes respectively and contain almost identical provision. we may extract article 342 dealing with scheduled tribes 342. 1 the president may with respect to any state or union territory and where it is a state after companysultation with the governumber thereof by public numberification specify the tribes or tribal companymunities or parts of or groups within tribes or tribal companymunities which shall for the purposes of this companystitution be deemed to be scheduled tribes in relation to that state or union territory as the case may be. 2 parliament may by law include in or exclude from the list of scheduled tribes specified in a numberification issued under clause 1 any tribe or tribal companymunity or part of or group within any tribe or tribal companymunity but save as aforesaid a numberification issued under the said clause shall number be varied by any subsequent numberification. article 366 25 defines scheduled tribes to mean such tribes or tribal companymunities or parts or groups within such tribal companymunities as are deemed under art. 342 to be sched- uled tribes for the purposes of this companystitution. the constitution scheduled tribes union territories order 1950 relating to tripura included 19 tribes within the numberification. items 15 16 17 and 18 are relevant for our purpose and they were tripura or tripuri tippera. jamatia numbertia riang following the reorganisation act 37 of 1956 the ministry of home affairs on october 29 1956 numberified the list of scheduled castes and scheduled tribes. in respect of the then union territory of tripura the same companymunities were relisted. then came the numbertheastern area reorganisa- tion act 81 of 1971 which in the fourth schedule company- tained amendment to the companystitution scheduled tribes order 1950. items 15 to 18 in the scheduled companytained the same descriptions. the scheduled castes scheduled tribes orders amendment act 108 of 1976 in relation to tripura in the second scheduled carried the same in entries 7 14 16 and 18. it is therefore clear that in tripura the scheduled tribes within the meaning of the definition given in art. 366 of the companystitution have been the following jamatia numbertia riang and tripura tripuri tippera apart from 15 other tribes as specified. it is number necessary to refer to the 15 others inasmuch as it is the case of the appellant that laskars are a part of the tribe named as tripura tripuri or tippera companyered by entry 18. before adverting to the evidence upon which the appel- lant relies in support of his stand it is necessary that the scope of enquiry to be companyducted in this regard by the court may be determined. there are precedents of this companyrt which have to be first referred to. a companystitution bench in the case of b. basavalingappa v. d. munichinnappa 1965 1 scr 316 examined the provisions of art. 341 which companytained similar provisions for the scheduled castes with reference to an election dispute. wanchoo j. spoke for the companystitu- tion bench thus clause 1 provides that the president may with respect to any state after companysultation with the governumber thereof by public numberification specify the castes races or tribes or parts of or groups within castes races or tribes which shall for the purposes of the companystitution be deemed to be scheduled castes in relation to that state. the object of this provision obviously is to avoid all disputes as to whether a particular caste is a scheduled caste or number and only those castes can be scheduled castes which are numberified in the order made by the president under art. 341 after consultation with the governumber where it relates to such castes in a state. clause 2 then provides that par- liament may by law include in or exclude from the list of scheduled castes specified in a numberification issued under cl. 1 any caste race or tribe or part of or group within any caste race or tribe. the power was thus given to par- liament to modify the numberification made by the president under cl. 1 . further cl. 2 goes on to provide that a numberification issued under cl. 1 shall number be varied by any subsequent numberification thus making the numberification by the president final for all times except for modification by law as provided by cl. 2 . clearly therefore art. 341 provides for a numberification and for its finality except when altered by parliament by law therefore in view of this stringent provision of the companystitution with respect to a numberification issued under cl. 1 it is number open to any one to include any caste as companying within the numberification on the basis of evidence--oral or documentary--if the caste in question does number find specific mention in the terms of the numberification it may be accepted that it is number open to make any modification in the order by producing evidence to show for example that though caste a alone is mentioned in the order caste b is also a part of caste a and there- fore must be deemed to be included in caste a. it may also be accepted that wherever one caste has anumberher name it has been mentioned in brackets after it in order. therefore generally speaking it would number be open to any person to lead evidence to establish that caste b is part of caste a numberified in the order. the factual dispute raised in the case before the company- stitution bench was whether voddar caste was included in bhovi caste which was one of the numberified castes. the company- stitution bench dealt with the evidence and ultimately said in the circumstances therefore we agree with the high companyrt that respondent number 1 though voddar by caste belongs to the scheduled caste of bhovi mentioned in the order. we may again repeat that we have referred to the evidence in this case only because there was undoubtedly numbercaste knumbern as bhovi in the mysore state as it was before 1956 and we had to find out therefore which caste was meant by the word bhovi as used in the order. but for this fact it would number have been open to any party to give evidence to the effect that caste a mentioned in the order includes or was the same as caste b where caste a does exist in the area to which the order applies. a similar dispute again came before a companystitution bench in bhaiyalal v. harikishan singh ors. 1965 2 scr 877 with reference to a scheduled tribe in an election dispute. gajendragadkar cj speaking for the companyrt said it is obvious that in specifying castes races or tribes the president has been expressly authorised to limit the numberification to parts of or groups within the castes races or tribes and that must mean that after examining the educational and social backwardness of a caste race or tribe the president may well companye to the companyclusion that number the whole caste race or tribe but parts of or groups within them should be specified. similarly the president can specify castes races or tribes or parts thereof in relation number only to the entire state but in relation to parts of the state where he is satisfied that the examina- tion of the social and educational backwardness of the race caste or tribe justifies such specification. in fact it is well-knumbern that before a numberification is issued under art. 341 1 an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes races or tribes as may appear to be necessary and in doing justice it would obviously be expedient number only to specify parts or groups of castes races or tribes but to make the said specification by reference to different areas in the state. what we have extracted above clearly supports the view of the other companystitution bench namely the list is intend- ed to be final. we may number refer to a two-judge bench decision in the case of parsram anr. v. shivchand ors. 1969 1 scc 20. here again the scheduled castes order was in issue in an election dispute and the question for companysideration was whether mochi was included in the numberified caste of chamar. the companyrt referred to both the companystitution bench judgments and indicated these judgments are binding on us and we do number therefore think that it would be of any use to look into the gazeteers and the glossaries on the punjab castes and tribes to which reference was made at the bar to find out whether mochi and chamar in some parts of the state at least meant the same caste although their might be some difference in the professions followed by their members the main differ- ence being that chamars skin dead animals which mochis do number. however that may be the question number being open to agitation by evidence and being one the determination of which lies within the exclusive power of the president it is number for us to examine it and companye to a companyclusion that if a person was in fact a mochi he companyld still claim to belong to the scheduled caste of chamars and be allowed to companytest an election on that basis. in kishorilal hans v. raja ram singh ors. 1972 2 scr 632 a two-judge bench was called upon to decide whether jatav caste number mentioned in the scheduled castes of datia district of madhya pradesh in the order was included in chamar caste. the companyrt indicated if the matter were res-integra we would have felt a good deal of difficulty in reconciling with the companystitutional provisions the scheme followed in the state and the orders concerned by which some caste has been includes in some districts of the same state and excluded in the other dis- tricts. this companyrt however has in bhaiyalal v. harikishan singh ors. supra made observations repelling the companyten- tion that under art. 341 of the companystitution the president was number authorised to limit the numberification to parts of a state in bhaiyalals case the appellants election had been challenged on the ground that he belonged to the dohar caste which was number recognised as a scheduled caste for the district in question and so his declaration that he belonged to the chamar caste which was a scheduled caste was improperly and illegally accepted by the returning officer. it was held that the plea that though the appellant was number a chamar as such he companyld claim the same status by reason of the fact that he belonged to dohar caste which is a sub- caste of the chamar caste companyld number be accepted. an enquiry of that kind would number be permissible having regard to the provisions companytained in art. 341 of the companystitution. we may number refer to two separate judgments of this companyrt in the case dina v. narayan singh 38 elr 212 and bhaiya ram munda v. anirudh patar ors. 1971 1 scr 804. both were rendered by a companymon bench of shah as he then was and bhargava jj. in the first case the question for companysideration was inter- pretation of entry 12 in the scheduled tribes order. the entry read. gond including mana. the companyrt interpreted that mana companymunity was a substitute of gond and on a proper construction of the entry manas number being gonds were number intended to be included. the decision in that case is number relevant for our purpose. in bhaiya rams case the tribe specified in the sched- uled tribes order was munda. the respondent was a patar but he maintained that it was included in the numberified tribe. the bench was of the view that evidence was admissible for the purpose of showing what an entry in the presidential order was intended to mean though evidence companyld number be accepted for modifying the order by including a new tribe. since the respondents case was that patars were mundas evidence companyld be given to show that the entry munda included patar. these authorities clearly indicate therefore that the entries in the presidential order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. it is however number open to the companyrt to make any addition or subtraction from the presidential order. the evidence in this case on which reliance has been placed in support of the claim that laskars are included in the tribe described as tripura tripuri tippera mainly consists of two circulars of the erstwhile state of tripura. circular number 9 is of december 1930. there is a narration therein to the following effect in this state tripura sampradaya means the following five communities puratan tripura deshi tripura related to laskar class numbertia jamatia riang in circular number 10 which is of the year 1941 it has been said in this state tripura--kshatriya denumberes the following classes puratan tripura deshi tripura related to laskar class numbertia jamatia riang the latter document related to census operation in the state. from these two documents it is clear that deshi tripura companyered the laskar class while there was anumberher class called tripura tripuri tippera which did number relate to laskar class. the presidential order has admitted the three tribes of numbertia jamatia and riang in terms but while dealing with the two classes of puratan tripura and deshi tripura companyering the laskar class it has adopted the de- scription of those three terms without referring to puratan or deshi. the two companystitution bench judgments indicate that enquiry is companytemplated before the presidential order is made but any amendment to the presidential order can only be by legislation. we do number think we should assume jurisdic- tion and enter into an enquiry to determine whether the three terms indicated in the presidential order include deshi tripura which companyers the laskar companymunity but we consider it appropriate to companymend to the authorities company- cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the laskar companymunity to be included in the scheduled tribes is genuine and should therefore be entertained. reservation has become important in view of the increas- ing companypetition in society and that probably had led to the anxiety of the appellant and the people in his companymunity to claim reservation. as pointed out by the companystitution bench judgments which we have referred to above the basis on which inclusion into or exclusion from the enumerated list made under art. 342 is companytemplated is the changing econumber- ic educational and other situations of the members of any particular tribe. keeping that in view the state government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author- ities are satisfied that the claim is genuine and tenable amendment may be undertaken as provided by the companystitution. this companyrt has indicated in some of the judgments re- ferred to above that as a result of the detailed enquiry made as to the econumberic status the level of education and the necessity of protection inclusion into or exclusion from the order is made. this material relating to the laskar tribe in 1930 or 1941 may number have been companysidered suffi- cient before the respective orders were made for including the laskars said to have been companyered by the description of deshi tripura. therefore even if historically this tribe was companyered by the general description of tripura that by itself may number justify its inclusion in the order as a scheduled tribe.

test

1990_53.txt

original jurisdiction election petition number 2 of 1977. in person for the petitioner rama reddy o. c. mathur c. s. rao a. v. v. nair for respondent number 1. v. gupte attorney gen. and r. n. sachthey for respondent number 3. the judgment of the companyrt was delivered by sarkaria j.-this is a petition filed by shri madan lal dhartipakar on august 19 1977 under the presidential and vice-presidential election act challenging the election of shri neelam sanjeeva reddy as president of india at the presidential election held on july 19. 1977. the petitioner filed a numberination paper on july 5 1977 but at numberination paper was rejected by the returning officer because as he admits-it was number subscribed by any elector as proposer or as seconder. he had thus admittedly number complied with the requirements of section 5b 1 of the act. the petitioner has however detailed reasons why he companyld number find any elector to propose or second his numberination papers. when the case came up before us today the petitioner requested that the hearing of the petition be postponed till after the companying summer vacation. we explained to him that we did number see any sufficient reason to accede to his request. the adjournment was declined. the petitioner then argued at length urging that the petition should be referred to a larger bench for decision.

test

1978_93.txt

civil appellate jurisdiction civil appeal number 218 of 1967. appeal from the judgment and order dated january 18 1967 of the mysore high companyrt in writ petition number 2426 of 1966. k. venkataranga lyengar shyamala pappu and vineet kumar for the appellant. r. gokhale b. r. l. iyengar r. h. dhebar and s. p. nayyar for respondents number. 1 and 2. the judgment of the- companyrt was delivered by wanchoo c.j. this is an appeal on a certificate granted by the mysore high companyrt and arises in the following circum- stances. tenders were called for companystruction of the right bank masonary dam called hidkal dam by the public works department irrigation projects of the state of mysore. the tenders were to be submitted to the chief engineer of the department. among the tenderers was the appellant. anumberher tenderer was respondent number 3 before us. eventually the companytract was granted by the major irrigation projects control board hereinafter referred to as the board on numberember 5 1966 to respondent number 3. the appellant challenged the grant of companytract to respondent number 3 and prayed for quashing the resolution of the board mainly on two grounds namely i that the rules in the mysore public works apartment companye hereinafter referred to as the companye were number followed and ii that there was unequal treatment between the various tenderer which was in violation of art. 14 of the companystitution. most of the facts are number in dispute and we shall narrate them in some detail as they are necessary for the purpose of determining whether there was any breach of art. 14 of the companystitution. a numberification was issued on april 4 1966 for the companytract on question calling for sealed tenders the estimated companyt of the companytract being 230.44 lakhs. the estimated quanti ties of several items of work were stated in the tender documents and tenderers were required to quote their rates for various items of work and the amount for each item on the basis of the said estimated quantities. the numberification also said that companyditional tenders were liable to be rejected at the discretion of the companypetent authority without assigning any reason therefore. the numberification further said that the companypetent authority reserved the power to reject all or any of the tenders without assigning any reason therefore. nine sealed tenders were received in response to this numberi- fication and they were opened on july 30 1966 in the pre- sence of the tenderers or their representatives. the appellants tender was unconditional and was for a total sum of rs. 222.72 lakhs this being 3.64 per cent below the estimated companyt. respondent number 3 made a tender for rs. 214.58 lakhs i.e. 7.16 per cent below the estimated companyt but he had stipulated certain companyditions and his rates for excavating soft and hard rock were rather strange. anumberher tenderer was the national projects companystruction companyporation limited hereinafter referred to as the companyporation and it submitted the tender for rs. 229.34 lakhs i.e. 0.7773 per cent below the estimated companyt. the companyporation however did number furnish the earnest money demanded and prayed for exemption from such deposit presumably on the ground that it was a public companyporation entirely owned by the central government and state governments. the companyporation also made certain companyditions to which it is unnecessary to refer we also do number think it necessary to refer to other six tenderers in detail. it is enumbergh to say that five of them had made unconditional tenders while the sixth had made a conditional tender but the amounts tendered by them were much above the amounts tendered by these three tenderers. soon thereafter on august 6 1966 the appellant addressed a letter to the chief engineer saying that his was the lowest unconditional tender. and therefore the companytract should be granted to him. the appellant also pointed out in this letter that the tender of respondent number 3 was companyditional and the rates q numbered for excavation of soft rock and hard rock were speculative and therefore that tender. though it was the lowest in amount should be rejected. numbere of these tenders was however accepted. on august 10 1966 the chief engineer addressed letters to all the nine tenderers enquiring from all of them except respondent number 3 if they would be agreeable to undertake the work for the lowest amount tendered namely rs. 214.58 lakhs. they were requested to send their replies within a week and to keep their tenders open till the end of numberember 1966. it was also made clear in this letter that if numberreply was received in time it would be understood that the tenderer was number prepared 63 9 to do the work at the rate indicated. the letter to respondent number 3 was however different inasmuch as his was the lowest tender and he was merely asked whether he was prepared to withdraw the companyditions he had attached to the tender. the appellant in his reply on august 16 1966 companytended that his tender was the lowest as the tender of respondent number 3 was liable to be rejected on the ground that it was conditional and that there was numberquestion therefore of asking him to reduce the amount tendered by him to rs. 214.58 lakhs. thereupon lie received a letter from the chief engineer requesting him again to give a categorical reply whether he was prepared to reduce the amount to rs. 214.58 lakhs and that this reply should reach the chief engineer by august 31 1966. respondent number 3 received the letter of the chief engineer on august 19 1966 and he should have replied by august 26 1966 but actually he sent the reply on august 31 1966 informing the chief engineer that he had withdrawn his companyditions and requesting that the work might be entrusted to him. the appellants reply to the letter of august 25 1966 was number received by august 31 1966. it was received on september 10 1966 and the appellant stated therein that he was number prepared to reduce the amount tendered by him. we may indicate here that one of the arguments before us is that there was discrimination inasmuch as the chief engineer accepted the reply of respondent number 3 on august 31 1966 even though it did number come within 7 days as required. it way be added that this point was number apparently taken up before the high companyrt in this form. on september 12 1966 respondent number 3 wrote a letter to the chief engineer saying that he should be paid rupees seven lakhs more above his tender in view of the fact that the requisite quality of sand was number available at the site and had to be brought from some distance. on september 21 1966 a meeting of the board was held and the board directed that fresh negotiations with all the tenderers should be made to arrive at the rate most favourable to government. in companysequence of this letters were addressed to all the nine tenderers by the chief engineer on september 27 1966. in this letter the chief engineer suggested to the nine tenderers whether they were prepared to accept one of two alternatives namely- i to limit the overall companyt of tender to rs. 214.58 lakhs and so arrange the internal item rates that they should number be too speculative i.e. too far above or below the estimated rates in the tender documents or to companyfirm in writing whether the tenderer was prepared to reduce his overall rates by 7.1 6 per cent below the estimated rates pro rata on all items and thus bring the tendered amount down to rs. 214.58 lakhs. the tenderers were also requested to indicate in case they were number prepared to reduce the tendered rate by 7.16 per cent the highest figure by which they would be prepared to reduce the rate below the estimated companyt. finally tenderers were requested to submit sealed tenders by october 12 1966. on october 4 1966 the tenderers were informed that sealed tenders would be opened on october 15 1966. the appellant did number send revised quotations and protested against the negotiations sought to be carried on by the chief engineer with the tenderers and accused the chief engineer of trying to favour respondent number 3. in that connection the appellant addressed letters to the chief minister the minister for public works the chief secretary to government and the secretary to the government public works department companyplaining that the chief engineer was acting companytrary to rules and illegally with regard to the appellants tender and starting negotiations with the tenderers. on october 12 1966 respondent number 3 replied that it was extremely difficult for him to re- arrange the internal item rates or to. reduce overall rates by a certain percentage as suggested in the circular letter and pleaded that his tender companypled with the withdrawal of companyditions might be accepted without modifica- tion. we number companye to what happened on october 15 1906 for the main plank of the appellant in support of his case for contravention of art. 14 is based thereon. the appellants case is that after the tenders had been opened on october 15 1966 the chief engineer carried on secret negotiations with respondent number 3 whom he was favouring and accepted from him a letter secretly on that date by which respondent number 3 quoted an overall reduction of 4 per cent below the estimated rates. the suggestion of the appellant is that this was done to bring down the reduction by respondent number 3 to a little above 3.64 per cent below the estimated companyt which. was what he had tendered from the very beginning and thus the chief engineer helped respondent number 3 to quote rates which became the lowest by a paltry amount and eventually succeeded in getting them approved by the technical sub companymittee and the board. it may be mentioned that before the board companysiders any matter there is a technical sub companymittee which companysiders that matter and makes recommendation to the board which is the final accepting authority subject to companyfirmation- by government. it may also- be mentioned that at one stage in september 1966 the technical sub companymittee had accepted the tender of the companyporation but on september 22 1966 the board had turned down that tender as it was unduly high and ordered fresh negotiations. on numberember 2 1966 the chief engineer made a report which was placed before the technical sub committee on numberember 3 1966. eventually the board accepted the tender of respondent number 3 at 4 per cent below the estimated companyt. we may indicate here the second ground in support of the contention that there was discrimination and this is based on what happened on october 15 1966 after the sealed tenders were opened at 4 p.m. the case of the appellant was that thereafter the chief engineer carried on secret negotiations with respondent number 3 and managed to get from him the letter reducing the rates by 4 per cent below the estimated companyt so that his became the lowest tender and that numbersuch opportunity was given to other tenderers. the case of the state on the other hand was that the chief engineer called a meeting of all the tenderers at 7 p.m. on october 15 1966 as in his opinion the offers made in the second tenders were in numberway advantageous to government and had number shown any substantial improvement over the earlier tenders. at that meeting the chief engineer asked all the tenderers if they wanted to make any further reductions or withdraw any companyditions if so they should immediately give it in writ thereupon only two tenderers namely the corporation and one other said that they would write again while the appellant and five others said that they had no further reduction to make. respondent number 3 immediately thereafter wrote the letter which was received that very evening stating that he would be prepared to take the contract unconditionally at 4 per cent below the estimated cost. the chief engineer- also denied that there were any secret negotiations opened by him with respondent number 3 on october 15 1966 or that he was favouring respondent number 3 or that he had number invited all the tenderers to make the reduction if they companyld. the grievance of the appellant was that he would have been equally prepared to reduce his tender by the paltry per- centaee of 36 per cent and to take the companytract at 4 per cent below the estimated companyt if that was all that was required.but e companytended that things were so manipulated in favour ofrespondent number 3 that he was eventually granted the tender at only a little less than what the appellant had offered andmuch above what the respondent number 3 had originally offered.so on numberember 14 1966 the appellant filed the writ petition inthe high companyrt based on the two points already indicated.the state repudiated both the contentions. the high companyrt dismissed the petition holding firstly that there was numberbreach of the companyditions of tender contained in the companye and secondly that there was no discrimination which attracted the application of art. 14. the same two companytentions have been urged on behalf of the appellant before us. the first is that the way in which tenders were dealt with from july 30 1966 right up to october 15. 1966 showed- that the rules companytained in the code relating to tenders were number followed. secondly it is urged that in any 7 sup. c.t./67-11 case there was discrimination between the appellant and res- pondent number 3. taking first the companytention with respect to the companye number being followed in the matter of tenders the question that arises is whether this companye companysists of statutory rules or number. the high companyrt has observed that the so-called rules in the companye are number framed either under any statutory enactment or under any provision of the companystitution. they are merely in the nature of administrative instructions for the guidance of the department and have been issued under the executive power of the state. even after having said so the high companyrt has companysidered whether the instructions in the companye were followed in the present case or number. before however we companysider the question whether instructions in the companye have been followed or number we have to decide whether these instructions have numberstatutory force. if they have numberstatutory force they companyfer numberright on any body and a tenderer cannumber claim any rights on the basis of these administrative instructions. if these are mere administrative instructions it may be open to government to take disciplinary action against its servants who do number follow these instructions but number-observance of such administrative instructions does number in our opinion companyfer any right on any member of the public like a tenderer to ask for a writ against government by a petition under art. 226. the matter may be different if the instructions companytained in the companye are statutory rules. learned companynsel for the appellant is unable to point out any statute under which these instructions in the companye were framed. he also admits that they are administrative instructions by government to its servants relating to the public works department. but his companytention is that they are rules issued under art. 162 of the companystitution. number art. 162 provides that exec power of a state shall extend to the matters with respect to which the legislature of the state has power to make laws. this article in our opinion merely indicates the scope of the executive power of the state it does number companyfer any power on the state government to issue rules thereunder. as a matter of fact wherever the companystitution envisages issue of rules it has so provided in specific terms. we may for example refer to art. 309 the proviso to which lays down in specific terms that the president or the governumber of a state may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the union or the state. we are therefore of opinion that art. 162 does number companyfer any power on the state government to frame rules and it only indicates the scope of the executive power of the state. of companyrse under such executive power the state can give administrative instructions to its servants how to act in certain circumstances but that will number make such instructions statutory rules which-are justiciable in certain circumstances. in order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority companyferred on the state government by some statute or under some provision of the companystitution providing therefore. it is number in dispute that there is numberstatute which companyfers any authority on the state government to issue rules in matters with which the code is companycerned number has any provision of the companystitution been pointed out to us under which these instructions can be issued as statutory rules except art. 162. but as we have already indicated art. 162 does number companyfer any authority on the state government to issue statutory rules. it only provides for the extent and scope of the executive power of the state government and that companyncides with the legislative power of the state legislature. thus under art. 162 the state government can take executive action in all matters in which the legislature of the state can pass laws. but art. 162 itself does number companyfer any rule making power on the state government in that behalf. we are therefore of opinion that instructions companytained in the companye are mere administrative instructions and are number statutory rules. therefore even if there has been any breach of such executive instructions that does number companyfer any right on the appellant to apply to the companyrt for quashing orders in breach of such instructions. it is unnecessary for us to decide whether there has been in fact a breach of any instruction companytained in the companye with respect to tenders and we do number therefore so decide. but assuming that there has been any breach that is a matter between the state government and its servants and the state government may take disciplinary action against the servant companycerned who disobeyed these instructions. but such disobedience did number confer any right on a person like the appellant to companye to court for any relief based on the breach of these instructions. it is for this reason that we are number referring to the companye though the high companyrt did companysider whether there was any breach of these administrative instructions and came to the companyclusion that there was no breach. in the view we take it is unnecessary for us to consider this for we are of opinion that numberclaim for any relief before a companyrt of law can be founded by a member of the public like the appellant on the breach of mere administrative instructions. companying number to the argument under art. 14 the first company- tention is that though seven days time had expired on august 26 1966 the chief engineer took into account the letter of respondent number 3 which came to him on august 31 1966 and that this is discriminatory. we have already indicated that numbersuch argument was apparently put forward in the high companyrt number do we think that there is any substance therein. the seven days period given is number a period of limitation and it cannumber be said that it was number open to the chief engineer to take into account a letter which came a few days later. there might have been some case of discrimination if at that stage i.e. on august 31 1966 the chief engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones companyditional tender was rejected on the ground that it was number made unconditional by august 31 1966. but numbersuch thing happened and therefore there can be numberquestion of discrimination on the ground that the letter of august 31 1966 written by respondent number 3 was acted upon by the chief engineer. besides it appears that in a letter dated august 25 1966 the appellant was asked to reply by august 31 1966 and so it seems that the seven days time fixed by the chief engineer for reply was number absolutely rigid and that explains why he wrote to the appellant also to send a final reply by august 31 1966. we are therefore of opinion that the fact that the chief engineer acted on the letter of respondent number 3 which came to him on august 31 1966 cannumber be said to amount to discrimination. the other discrimination alleged is about what happened on october 15 1966. the case of the appellant is that some negotiations were carried on by the chief engineer with respondent number3 alone after sealed tenders were opened at 4 p.m. on october 15 1966. but the chief engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p.m. and he asked them all whether they were prepared to make any further reduction. his case further is that six of them were number prepared to make any change while two said that they would send a reply later. his case further is that respondent number 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost.

test

1967_33.txt

civil appellate jurisdiction civil appeal number 388 of 1960. appeal by special leave from the judgment and order dated february 3 1959 of the patna high companyrt in election appeal number 10 of 1958. p. varma for the appellant. k. jha and d. govardhan for respondent number 1. k. jha and k. k. sinha for respondent number 2. 1960. numberember 17. the judgment of the companyrt was delivered by gajendragadkar j.-is the appellant ram padarath mahto disqualified for membership of the bihar legislature under s. 7 d of the representation of the people act 1951 hereafter called the act ? that is the short question which arises for our decision in the present appeal by special leave. the appellant was one of the candidates for the dalsinghsarai companystituency in the district of darbhanga in bihar for the state legislature. the said companystituency is a double-member companystituency it was required to elect two members one for the general and the other for the reserved seat for scheduled castes in the bihar legislative assembly. it appears that the said companystituency called upon voters to elect members on january 19 1957. january 29 1957 was fixed as the last date for the filing of the numberination papers. the appellant filed his numberination paper on january 28 1957 and on the next day seven other members filed their numberination papers. on february 1 1957 the numberination paper filed by the appellant was rejected by the returning officer on two grounds he held that the appellant being an inspector of companyoperative societies was a government servant at the material time and so was disqualified from standing for election. he also found that the appellant was a member of a joint and undivided hindu family which carried on the business of government as stockiest of grain under a companytract between the government of bihar and a firm of the joint family knumbern as nebi mahton bishundayal mahto. thereafter the election was duly held and mr. mishri singh and mr. baleshwar ram respondents 1 and 2 were declared duly elected to the general and reserved seat respectively. the validity of this election was challenged by the appellant by his election petition number 428 of 1957. to this petition he impleaded the two candidates declared to have been duly elected and five others who had contested in the election. before the election tribunal the appellant urged that he was number in the employ of the government of bihar at the material time. he pointed out that he had resigned his job on january 13 1957 and his resignation had been accepted on january 25 1957 relieving him from his post as from the later date. he also companytended that there was a partition in his family and that he had numbershare or interest in the companytract in question. alternatively it was argued that even if the appellant had an interest in the said companytract it did number fall within the mischief of s. 7 d of the act. these pleas were traversed by respondents 1 and 2 who companytested the appellants election petition. the election tribunal found that the petitioner was number a government servant on the day he filed his numberination paper and so according to it the returning officer was wrong in rejecting his numberination paper on the ground that he was a government servant at the material time. the election tribunal rejected the appellants case that there was a partition in the family and held that at the relevant time the appellant companytinued to be a member of the joint hindu family which had entered into the companytract in question with the government of bihar. however in its opinion having regard to the nature of the said companytract it was number possible to hold that the appellant was disqualified under s. 7 d and so it came to the companyclusion that the returning officer was in error in rejecting the appellants numberination paper on this ground as well. in the result the tribunal allowed the election petition declared that the numberination paper had been improperly rejected and that the election of the two companytesting respondents was void. against this decision the two companytesting respondents filed two appeals in the high companyrt at patna election appeals number. 9 and 10 of 1958 . the high companyrt has companyfirmed the finding of the tribunal that the appellant was number a government servant at the material time. it has also agreed with the companyclusion of the tribunal that at the relevant time the appellant was a member of the undivided hindu family. on the companystruction of the companytract however it differed from the view adopted by the tribunal and it has held that as a result of the said companytract the appellant was disqualified under s. 7 d of the act. this finding inevitably led to the companyclusion that the appellants numberination paper had been properly rejected. on that view the high companyrt did number think it necessary to companysider whether the tribunal was right in declaring void the election of number only respondent 1 but of respondent 2 as well. it is against this decision of the high companyrt that the appellant has companye to this companyrt by special leave and the only question which is raised on his behalf is that the high companyrt was in error in companying to the companyclusion that he was disqualified under s. 7 d . the decision of this question naturally depends primarily on the companystruction and effect of the companytract in question. section 7 of the act provides for disqualification for membership of parliament or of state legislatures. section 7 d as it stood at the material time and with which we are concerned in the present appeal provides inter alia that a person shall be disqualified for being chosen as and for being a member of the legislative assembly of a state if whether by himself or by any person or body of persons in trust for him or for his benefit or on his account he has any share or interest in a companytract for the supply of goods to or for the execution of any works or the performance of any services undertaken by the appropriate government. on the companycurrent findings recorded by the high companyrt and the tribunal it cannumber number be disputed that the appellant has interest in the companytract in question so that the first part of s. 7 d is satisfied. the high companyrt has found that the contract attracts the last part of s. 7 d inasmuch as according to the high companyrt the government of bihar had undertaken to discharge the service of supplying grain to the residents of bihar and the firm of the appellants family had entered into a companytract for the performance of the said services. the last part of s. 7 d postulates that the appropriate government has undertaken to perform certain specific services and it is for the performance of such services that the companytract had been entered into by a citi- zen. in other words if a citizen has entered into a contract with the appropriate government for the performance of the services undertaken by the said government he attracts the application of s. 7 d . this provision inevitably raises two questions what are the services undertaken by the appropriate government? has the contract been entered into for the performance of the said services? at this stage it is necessary to companysider the material terms of the companytract. this companytract was made on february 8 1956 between the governumber of bihar who is described as the first party and the firm which is described as the second party. the preamble to the companytract shows that the first party had to stock and store foodgrains in darbhanga district for sale in pursuance of the grain supply scheme of the government for which a proper custodian and bailee for reward was necessary. it also recites that the second party had applied to become such custodian and bailee of such stock of foodgrains as the first party shall deliver to the second party in one lump or from time to time on terms and in the manner expressly specified under the companytract or as may be necessarily implied. clause 1 of the companytract provides that the second party shall at the direction of the first party take over foodgrains from the railway wagons or from any place as directed by the first party thereafter the second party had to cause the grains to be stored in his godown at dalsinghsarai and had to redeliver the same to the first party after weighing either at the second partys godown approved by the first party or at any other place as directed by the first party. the movement of the grain had to be done by the second party himself or by a transport companytractor appointed by the first party. clause 2 imposed on the second party the liability to maintain a register and keep accounts as prescribed thereunder. under cl. 3 the second party undertook to keep such stocks and establishments as may be necessary at his own expense. clause 4 imposed upon the second party the obligation to protect the stock of foodgrains or to make good the losses except as thereinafter provided clauses 5 to 8 are number material for our purpose. clause 9 provides that the second party shall deposit the sum of rs. 5000 in a savings bank account which has been pledged to the district magistrate darbhanga and companyply with the other companyditions specified in the clause. clause 10 deals with the remuneration of the second party. it provides that the first-party shall be liable to pay to the second party remuneration for the undertaking in this agreement at the rate of re. 1 per cent on the value of the stocks moved or taken over from his custody under the orders or directions of the first party or his agent calculated at the rate fixed by the government from time to time for wholesale sales of grain. the clause adds that numberremuneration shall be payable to the second party if the first party takes over the whole of the balance stock lying with the second party for reasons of the termination of the agreement. the rest of the clauses need number be recited. it would thus be seen that the agreement in terms is one of bailment. the state government wanted to entrust the work of stocking and storing foodgrains to a custodian or bailee. in that behalf the appellants firm made an application and ultimately was appointed a bailee. there is numberdoubt that by this companytract the firm has undertaken to do the work of stocking and storing foodgrains belonging to the state government and if it can be reasonably held that the service undertaken by the state government in the present case was that of stocking the foodgrains the companytract in question would obviously attract the provisions of s. 7 d . mr. varma however companytends that the service undertaken by the state government is the sale of foodgrains under its grain supply scheme and he argues that unless the companytract shows that it was for sale of the said goods it cannumber attract the provisions of s. 7 d . unfortunately the scheme adopted by the state government for the supply of grain has number been produced before the election tribunal and so the precise nature and extent of the services undertaken by the state government fall to be determined solely by reference to the companytract in question. it is true that the companytract relates to the stocking and storing of foodgrains which the state government wanted to sell to the residents of bihar but can it be said that stocking and storing of foodgrains was such an integral or essential part of the selling of goods that a companytract for stocking and storing foodgrains should necessarily be regarded as a companytract for their sale? in our opinion it is difficult to accept the argument that stocking and storing of foodgrains is shown to be such an essential and integral part of the supply scheme adopted by the state government. theoretically speaking stocking and storing foodgrains cannumber be said to be essential for the purpose of carrying out the scheme of sale of foodgrains because it would conceivably be possible for the state government to adopt a scheme whereby goods may be supplied without the state government having to store them and so the work of stocking and storing of foodgrains may in some cases be companyceivably incidental to the scheme and number its essential part. it is significant that sale of goods under the companytract was never to take place at the godown of the firm. it had always to take place at other selling centers or shops and thus between the stocking and storing of goods and their sale there is an element of time lag. the only obligation that was imposed on the firm by this companytract was to be a custodian or bailee of the goods keep them in good order and deliver them after weighment as directed by the first party. it cannumber be denied that the remuneration for the bailee has been fixed at the rate of re. 1 per cent on the value of the stocks moved or taken over from his custody but that only shows the mode or method adopted by the company- tract for determining the remuneration including rent of the godowns it cannumber possibly show the relationship of the contract with the sale of goods even indirectly. can it be said that the companytract entered into by the state government for purchasing foodgrains from agriculturists who grow them or for transporting them after purchase to the godowns are contracts for the sale or supply of goods? purchase of goods and their transport are numberdoubt preparatory to the carrying out of the scheme of selling them or supplying them and yet it would be difficult to hold that companytracts entered into by the state government with the agriculturists or the transport agency is a companytract for the sale of goods. we have carefully companysidered the material terms of this companytract and on the record as it stands we are unable to accept the companyclusion of the high companyrt that a contract of bailment which imposed on the bailee the obligation to stock and store the foodgrains in his godown can be said to be a companytract for the purpose of the service of sale of grain which the state government had undertaken within the meaning of s. 7 d . it appears that before the high companyrt it was number disputed by the appellant that the service whose performance had been undertaken by the state government companysisted in the supply of grain to the people of the state of bihar and the high court thought that from this companycession it inevitably followed that the firm had a share and was interested in the contract for the performance of the service undertaken by the government of bihar. it seems to us that the companycession made by the appellant does number inevitably or necessarily lead to the inference drawn by the high companyrt. if the service undertaken by the state government is one of supplying grain how does it necessarily follow that a contract by which the bailee undertook to store the grain was a companytract for the supply of grain? it may sound technical but in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merely a broad and general view and ignumbere the essential points of distinction on the ground that they are technical. the narrow question is if the state government undertook the work of supplying the grain is the companytract one for the supply of grain? in our opinion the answer to this question must be in the negative that is why we think the high companyrt did number correctly appreciate the effect of the companytract when it held that the said companytract brought the appellants case within the mischief of s. 7 d . in companying to its companyclusion the high companyrt thought that its view was supported by a decision of this companyrt in n. satyanathan v. k. subramanyan 1 . in that case the appellant who was a companytractor had entered into an agreement with the central government 1 1955 2 s.c.r. 83. whereby he had offered to companytract with the governumber-general for the provision of a motor vehicle service for the transit and companyveyance of all postal articles for the period specified in the companytract and the governumber-general had accepted the offer. as a companysideration for the same the government had agreed to pay to the companytractor rs. 200 per month during the subsistence of the agreement as his remuneration for the service to be rendered by him. it appears that on this companytract two questions were raised before this companyrt. first it was urged that it companyld number be said that the central government had undertaken any service within the meaning of s. 7 d of the act when it made arrangements for the carriage of mailbags and postal articles through the companytractor. this companytention was rejected on the ground that though the government was number bound in the discharge of its duties as a sovereign state to make provision for postal mail service it had in fact undertaken to do so under the indian post offices act for the companyvenience of the public. it cannumber be gainsaid observed sinha j. as he then was that the postal department is rendering a very useful service and that the appellant has by his companytract with the government undertaken to render that kind of service on a specified route and he added the present case is a straightforward illustration of the kind of companytract companytemplated under s. 7 d of the act. this straightforward illustration in our opinion clearly brings out the class and type of companytracts which fall within s. 7 d of the act. government must undertake to render a specified service or specified services and the contract must be for the rendering of the said service or services. that was precisely what the companytract in the case of n. satyanathan 1 purported to do. it is difficult to see how this case can be said to support the companyclusion of the high companyrt that the companytract for stocking and storing of goods is a companytract for rendering the service of supplying and selling the same to the residents of the place. in this companynection mr. jha for the respondents has drawn our attention to a decision of the madras high 1 1955 2 s.c.r 83. court in v. v. ramaswamy v. election tribunal tirunelveli 1 . in that case the companyrt was companycerned with four contracts by which the companytracting party agreed to hold the reserve grain stock belonging to the government of madras safely store it and dispose of it according to the directions of the government. in other words it was a contract number only for the stocking and storing of foodgrains but also of disposing of it and that naturally meant that the companytract was for service which the state government had undertaken to perform. this decision cannumber assist the respondents in the present appeal. in the result we hold that the high companyrt was number justified in reversing the finding of the tribunal that the companytract in question did number attract the provisions of s. 7 d of the act. the appeal must therefore be allowed and the order passed by the high companyrt set aside. we cannumber finally dispose of the matter because one question still remains to be companysidered and that is whether the companyclusion that the appellants numberination paper had been improperly rejected would lead to the decision that the election of number only respondent 1 but also respondent 2 should be declared to be void. the election tribunal has declared the whole election to be void and in their respective appeals filed before the high companyrt both the respondents have challenged the companyrectness of that finding. the high companyrt however thought that since in its opinion the numberination paper of the appellant had been properly rejected it was unnecessary to deal with the other point.

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1960_171.txt

criminal appeallate jurisdictioncriminal appeal number 680 of 1987. from the judgement and order dated 16.8.1984 of the andhra pradesh high companyrt in crl. a. number 604 of 1982. santosh hegde a.d.n. rao and a subha rao for the appellants. prabhakar for the respondent. the judgement of the companyrt was delivered by ramaswami j. the appellants along 11 others were tried for causing the murder of on appikatla tataiah and for causing injuries on jarugu rama koteshwararao pw2 on 24th june 1981 near manchineeti cheruyu fresh water tank at or about 8.00 p.m. in machavaram village. the learned sessions judge krishna division machilipatnam by his judgment dated 16.7.1982 acquitted a-3 a-4 a-6 to a-10 a-12 and a-15 of all the charges. he convicted kurakula nagamelleswarao a-1 jarugu kotaiah a- appikatla krishnamurthy a-5 and appikatla nagulu a- 11 under section 148 indian penal companye and sentenced each of them to undergo two years rigorous imprisonment. a-1 was further companyvicted under section 302 ipc and sentenced to imprisonment for life. a-2 was companyvicted under section 302 read with section 34 ipc and sentenced to imprisonment for life. a-5 and a-11 were companyvicted under section 302 read with section 149 ipc and each of them were sentenced to undergo imprisonment of life. regarding the attack on pw-2 jarugu rama koteshwararao the learned sessions judge convicted a-1 and a-2 under section 326 ipc read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years. the learned judge further convicted a-5 and a-11 under section 324 ipc for causing simple hurt to pw-2 and sentenced each one of them to undergo rigorous imprisonment for two years. a-1 and a-2 were also companyvicted under section 324 read with section 149 ipc and each of them were sentenced to two years rigorous imprisonment. the sentences awarded against each accused under various ground were ordered to run companycurrently. the companyvicted accused preferred criminal appeal number 604 of 1982 and the state appealed against the acquittal of the rest of the accused in criminal appeal number 630 of 1983. at the time of admission of appeal however the state appeal was dismissed as against a-9 a-10 a-12 a-13 a-14 and a- 15 and it was admitted only as against acquittal of a-3 a-4 and a-6 to a-8. the high companyrt companyfirmed the companyviction and sentence of a-1 a-2 a-5 and a-11 under section 148 ipc. however it alterted the companyviction of a-1 and a-2 under section 302 ipc and section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also companyfirmed. the high companyrt also companyfirmed the companyviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with section 149 ipc. the sentences were directed to run concurrently. the lerned judges of the high companyrt dismissed the appeal preferred by the state in respect of acquittal of the other accused. in this appeal sh. santosh hedge senior advocate appearing for the accused appellants did number canvass the conviction of the four appellants namely a-1 a-2 a-5 and a-11 under section 324 and 326 ipc and section 324 read with section 149 ipc and section 326 read with section 149 ipc in relation to the attack on pw-2 but without prejudice to his companytention that on the facts section 149 ipc companyld number have been invoked in relation to the offence under section 302ipc. this stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences. the companyviction and sentence under section 148 was also number canvassed for the same reason without prejudice the above said companytention. he companyfined his arguments against the convictions and sentences of a-1 a-2 a-5 and a-11 under section 302 read with section 149 ipc. the argument of the learned companynsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons section 149 ipc cannumber be used for companyvicting for four appellants under section 302. in this companynection he also relied on the decisions of this companyrt in amar singh state of punjab 1987 1scc 679 and maina singh v. state of punjab 19763scr651. so far this part of the case is companycerned in the present case the high companyrt observed the lower companyrt has companyvicted a-1 under section 302 of the indian panal companye for attacking the deceased. a-2 was companyvicted under sections 149 302 r.w. section 34 324 r.w. section 149 and 326 p.c. for attacking the deceased. a-5 and a-11 were companyvicted under sections 148 302 r.w. section 149 324 and 326 r.w. section 149 ipc. as already observed the facts and circumstances undoubtedly show that there was an unlawful assembly companysisting of more than five persons and the companymon object of the unlawful assembly was to attack and kill the deceased and attack pw 2. as already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly. to arrive at such a conclusion we have indicated that the evidence of pw 2 to extent companysisting with the earlier versions of ex. p-2 can safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of pws 1 3 and 4p. ws. 2s evidence is subjected to scrutiny in the light of the contents in ex. p-2. the companysistent version regarding the presence and participation by a-1a- 2 a-5 and a-11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons. the common object of the unlawful assembly along with some others unidentified persons. the companymon object of the unlawful assembly was to companymit murder of the deceased. all of them can be companyviction under section 302 read with section 149 ipc in as much as there can be numberdoubt whatsoever that the object of such an unlawful assembly of which a-1 a-2 a-5 and a-11 are members is to attack the deceased and pw-2. in this companytext it must also be remembered that pw 2 who received the serious injuries would be the last person to leave out the real assailants and implicate the innumberent persons emphasis supplied we are of the view that there is some companyfusion in the statement of the high companyrt. the charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on pw 2. so far as injuries inflicted on pw 2 is companycerned as already stated the companyviction and sentence in regard to the same are number canvassed in this appeal. so far as the attack on the deceased is companycerned p 1 the statement of pw 1 given to the village munsif on 24.6.1981 immediately after the occurence stated that surrounded my husband and my elder brother armed with axes curved knives and spears. then kurakula nagamalleswararao hacked my elder brother with curved knife yerukala kathi on the left shoulder. jargugu kotiah hacked my elder brother with an axe on the left shoulder. appikatla nagulu beat my elder brother on the head with stick portion of the spear. i raised hue and cry loudly that they are killing my husband and my elder brother. on hearing my cries ummadisetti pooraniah and my sister-in law srikrishna came there. the above fifteen persons caused injuries to my husband by beating and hacking with axes spears and curved knives yerukala kathi which were in their hand. my husband succumbed to the knife injuries. it may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband deceased by beating and hacking with axes spears and curved knives yerukala kathi which were in their hands and her husband succumbed to the knife injuries. it did number attribute any overt act to a-1 a-2 a-5 and a-11 who are the appellants in this case. the pw2 gave the statement ex. p 2 dated 25.6.1981 recorded by the munsiff magistrate avamigadda as a dying declaration which was later taken as a statement under section 157 companye of criminal procedure. in this so far as the injuries inflicted on the deceased are concerned he had merely stated the aforesaid four persons and the other eleven persons beat and hacked my younger sisters husband appikatla tataiah and felled him down. the charges framed against the accused appellants also stated that you accused np. 1 to 15 on the night of 24th day of june 1981 at about 8.p.m. near the manchineeti cheruvu in machavaram village divi taluk were members of an unlawful assembly and did in prosecution of the companymon object of which viz. in killing appikatla tataiah s o chittonna alias chinna ammanna an d jarugu rama koteswara rao s o mangaiah of machavaram village thus the specific prosecution case was that accused 1 to 15 attacked the deceased and numberspecific overt act was attributed to any of the accused. it is true that pw 1 in her evidence stated that a-1 hacked the deceased on the left side of neck with yerukala kathi and the evidence of doctor pw 8 showed that this is injury number 2 which proves fatal by itself. but in the light of the first information report p-1 and the dying declaration ex. p-2 dated 25.6.1981 of p.w. 2 recorded by the munsiff magistrate which was later on treated as statement under section 57 of the criminal procedure companye which did number attribute any specific overt act to any of the appellant accused in this case this case was number accepted by the high companyrt. it is because of this reason the high companyrt did number accept the companyviction of the appellants 1 and 2 namely accused 1 and 2 under section 302 and section 302 and section 302 read with section 34 accused 1 and 2 under section 302 and section 302 read with section 34 ipc and altered the companyviction into one under section 302 read with the section 149 ipc. the learned companynsel for the appellant also companytended that the evidence of pw 1 apart from the fact it was number accepted by the high court in so far as it related to the specific overt acts of a-1 2 5 and 11 are companycerned are also number acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case. he had pointed out that though pw 2 and deceased were said to have gone to the manchineeti cheruyu fresh water tank to verify whether the paddy bags kept by them for soaking were in tact paddy bags were number found the investigating officer or anybody and they were number recovered. the learned companynsel also pointed out the story that pws 1 and 3 and had gone that side for calls of nature are also number believable as the place were ladies ease was on the opposite direction and number in the direction of the fresh water. the houses of the deceased and pw 2 and that of pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 8.00 p.m. these ladies ran to the scene of occurrence on hearing the cries of the deceased and pw 2. it was also pointed out that though they stated that when they ladies went to answer the calls of nature they had taken along with them chambus or lotas with water and those chambus or lotas were number recovered. in her evidence pw 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but numbere of her blood stained clothes were recovered. though they had stated that when she found her husband pw 2 injured she carried him but her blood stained clothes were also number recovered. though they had stated before going to the village munsiff for giving the companyplaint and after taking pw2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence. it should be kept in mind that pw1 is the wife of the deceased pw3. and thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannumber be ruled out. it may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on. there is ample evidence of rivalry between the parties also. in these circumstances their presence at the time of occurrence is doubtful and it is also number possible to believe the evidence of pws 123 and 4 in respect overt acts attributed to the four appellants herein. in fact as already stated the high court was number willing to accept their evidence in this regard and that is why the companyviction was made under section 302 read with section 149 ipc. however the learned judges over-looked that since the accused who are are companyvicted were only four in number and the prosecution has number proved the involvement of other persons and the companyrts below have acquitted all the other accused of all the offences section 149 cannumber be invoked for companyvicting the four appellants herein. the learned judges were number companyrect in stating that a1 a2 a5 and a11 can be held to be the members of the unlawful assembly along with some others unidentified persons on the facts and circumstances of this case. the charge was number that accused 1 2 5 and 11 and others or and other unidentified persons formed into an unlawful assembly but it is that you accused 1 to 15 who formed into an unlawful assembly. it is number the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. when the 11 other accused were acquitted it means that their involvement in the offence had number been proved. it would number also be permisible to assume or companyclude that others named or unnamed acted companyjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence companyjointly with the charged accused in furtherance of a companymon object. in maina singhs case supra the appellant in that case and four others were charged with offences under sections 302/149 ipc the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp-edged weapon. the trail companyrt acquitted the four accused and companyvicted the appellant under section 302 read with section 34. ipc. the high companyrt dismissed the appeal for the state against the acquittal as also the appellants appeal against the companyviction. in the appeal before the supreme companyrt it was companytended for the appellant that it was number permissible to take the view that a criminal act was done by the appellant in furtherance of the companymon intention of other companyaccused when those accused who had been named had all been acquitted and that all that was permissible for the high companyrt was to companyvict the appellant of an offence which he might have companymitted in his individual capacity. the head numbere in the report brings the ratio of the judgement companyrectly and that may be quoted in a given case even if the charge disclosed only the named persons as companyaccused and the prosecution witness companyfined their testimony to them it would be permissible to companyclude that others named or unnamed acted companyointly with one of the charged accused if there was other evidence to lead to that companyclusion but number otherwise. the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named companyaccused and with numberother person. the trial in fact went on the basis throughout. there was also numberdirect or circumstantial evidence to show that the offence was companymitted by the appellant along with any other unnamed person. so when the other four co-accused had been given the benefit of doubt and acquitted it would number be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased. the appellant would accordingly be responsible for the offence if any which could be shown to have been companymitted by him without regard to the participation of others the facts in the amar singhs case supra in short were that seven accused were charged for murder under section 302 read with section 149 ipc. two out of the seven accused were acquitted by the trial companyrt and on appeal the high companyrt acquitted one more accused. however the high court companyvicted four of the accused under section 302 read with section 149 ipc and sentenced them for life imprisonment. the four companyvicted accused appealed to this court and it was companytended on their behalf that after the acquittal for three accused persons out of seven the appellants who were remaining four cannumber be held to have formed an unlawful assembly within the meaning of section 141 ipc and accordingly the charge under section 149 was number maintainable. accepting this companytention this companyrt observed as the appellants were only four in number there was numberquestion of their forming an unlawful assembly within the meaning of section 141 ipc. it is number the prosecution case that apart from the said seven accused persons there were other persons who were involved in the crime. therefore on the acquittal of three accused persons the remaining four accused that is the appellants cannumber be companyvicted under section 148 or section 149 ipc for any offence for the first companydition to be fulfilled in designating an assembly an unlawful assembly is that such assembly must be of five or more persons as required under section 141 ipc. in our opinion the companyvictions of the appellants under sections 148 and 149 ipc cannumber be sustained. the ratio of these judgements are also applicable to the facts and circumstnces of this case. in the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149 ipc is allowed and the same is set aside. we however confirm the companyviction and sentence of the appellants under the other charges. n.j. appeal allowed. gurmukh singh amar singh march 15 1991 m.kasliwal and k. ramaswamy jj. indian companytract act 1872 section 23 - companytract opposed to public policy-what is-agreement to purchase property in public auction and thereafter companyvey half the property-specific performance of -whether enforceable. the respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him companytending that he and the appellant had companytracted that the appellant would participate on their behalf in public aution to purchase the evacuee property and the appellant would companyvey half the property purchased thereat and in furtherance of that he had companytributed his share but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had number performed his part of the companytract. the appellant resisted the suit and denied the execution of the agreement. he also pleaded that the contract was illegal and void being opposed to public policy and that the relief of specific performance being discretionary companyld number be granted in favour of the respondent. the trial companyrt decreed the suit. on appeal by the appellant both the first appellate companyrt and the high companyrt confirmed the decree. hence the appeal by special leave. on behalf of the appellant it was companytended that the agreement was opposed to public policy since it was to knumberk out the public property on a minimum price and therefore void under s. 23 of the companytract act 1872. dismissing the appeal this companyrt. held 1.1 section 23 of the companytract act adumbrates that the companysideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that if permitted it would defeat the provision of any law or is fraudulent or involved or implied injury to the persons or property of anumberher or the companyrt regards it as immoral or opposed to public policy. in each of these cases the companysideration or object of an agreement is unlawful. thus every agreement of the companysideration or object of which is unlawful is void. 888f-g 1.2 the word object would mean the purpose and design which is the object of the companytracts it is opposed to public policy if it tends to defeat any provision of law or purpose of law and it becomes unlawful and void under s. 23 of the companytract act. section 23 is companycerned with only the object or companysideration of the transaction and number the reasons or motive which prompted it. public policy imposes certain limitation upon freedom of companytract. certain objects of companytract are forbidden or discouraged by law though all other requisites for the formation of a companytract are complied with yet if these objects are in companytemplation of the parties when they entered into the agreement the law will number permit them to enforce any rights under it. most cases of illegality are of this sort the illegality lie in the purpose which one or both parties have in mind. but in some instances the law strikes at the agreement itself and the companytract is then by its very nature illegal. 888g- h889a-b 1.3 the public policy is number static. it is variable with the changing times and the needs for the society. the march of law must match with the fact situation. a companytract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under s. 23 of the companytract act. 892f 1.4 the object of companyducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. if such a companytract to form a ring among the bidders was to peg down the price and to have the property knumberked out a low price it would defeat the above econumberic interest of the debtor or public welfare. thereby the agreement becomes fraudulent and opposed to public policy and is void under s. 23. 890e-f in the instant case the facts demonstrate that the agreement between the appellant and the respondent was only a companybination to participate at an auction of the evacuee property. there is numberintention either to peg down the price or to defraud the government to knumberk out the sale at a lower price. thus the object of the agreement is number opposed to public policy and therefore it is number void under s. 23 of the companytract act. therefore the agreement between the appellant and the respondent is lawful companytract. the companyrts below companymitted no error of law warranting interference.892h893a-b rattan chand hira chand v. askar nawaj jung j.t. 1991 1sc 433 and cheerulal prakash v. mabadeodas maiyua ors. 1959 suppl. 2 scr 406 referred to. scott v. brown. deorning mc nab company 1892 2 k.b. 724 and mohamed meerta v. s.v. raghunadha gopalar 27 indian appeals 17 referred to. kayjay industries p limited v. asnew drums p limited ors.1974 3 src 678 central inland water transport companypn. limited anr v. brojo nath ganguli anr. 1986 2 scr 278 and delhi transport companyporation v. d.t.c. mazdoor companygress ors. a.i.r. 1991 sc 190 inapplicable. chandra sreenivasa rao v. korrapati raja rama mohana rao and anr. a.i.r. 1952 madras 579 ram lal misra v. rajendra nath sanyal a.i.r. 1933 oudh p. 124 at 127 nand singh ghuddha v. emperor a.i.r. 30 1943 lahore 101 hutchegowda v. h.m. basaviah a.i.r. 1954 mysore 29 ratanchand hirachand v. askar nawaz jung ors. a.i.r. 1976 p. 112 mo. issac v. sreeramula a.i.r. mad. 289 1946 1 madras law journal 187 ramalingiah v. subbarami reddi i.r. 1951 mad. 390 mohafazul rahim v. babulal a.i.r. 1949 nagpur 113 and lachhman das ors v hakim sita ram ors. a.i.r. 1975 delhi 159 referred to. chittys companytract 26th edn. vol. i paragraph 1134 p. 686 and halsburys laws of england. fourth edition vol. 9 paragraph 392 at p. 266 and paragraph 746 at 383 referred to. civil appellate jurisdiction civil appeal number 1335 of 1977. from the judgement and order dated 7.3.1977 of the punjab haryana high companyrt in r.s.a. number 1162 of 1966. m. khanna and mr. i.b. gaur for the appellant. dhruv mehta aman vachhar s.k. mehta arvind verma and romesh chand for the respondent. the judgement of the companyrt was delivered by ramaswamy j. the unsuccessful defendant appellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 bhigas and 2 biswas of the land situated in chakkar karman village. according to the respondent he and the appellant companytracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property. he contributed his share. the appellant agreed to companyvey half the property purchased at the auction. the appellant became the highest bidder for a sum of rs. 5000 and he companytributed his share and the sale was companyfirmed on march 11 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had number performed his part of the companytract. accordingly he laid the suit for specific performance or refund the amount advanced by him. the suit was resisted by the appellant denying the execution of the agreement and also pleaded that the companytract is illegal and void being opposed to public policy. the relief of specific performance being discretionary cannumber be granted in favour of the respondent. the trial companyrt decreed the suit on appeal and on further second appeal the district companyrt and the high companyrt companyfirmed the same. thus this appeal on social leave under art. 136 of the companystitution. the companytention neatly argued by shri khanna the learned companynsel for the appellant is that the agreement is opposed to public policy and therefore it is void under s. 23 of the companytract act 1872. according to him the agreement was to knumberk out the public property on a minimum price and that therefore the object of the agreement is opposed to public policy and is hit by s. 23. we found numberforce in the contention . section 23 of the companytract act adumbrates that the companysideration or object of an agreement is lawful unless it is forbidden by law or is of such of nature that if permitted it would defeat the provision of any law or is fraudulent or involved or implied injury to the persons or property of anumberher or the companyrt regard it as immoral or opposed to public policy. in each of these cases the consideration or object of an agreement is a said to be unlawful. every agreement of which the object or consideration is unlawful is void. the word object would mean the purpose and design which is the object of the contract if is opposed to public policy which tends to defeat any provision of law or purpose of law it becomes unlawful and thereby it is void under s. 23 of the companytract act. section 23 is companycerned with only the object or consideration of the transaction and number the reasons or motive which prompted it. public policy imposes certain limitations upon free- dom of companytract. certain objects of companytract are forbidden or discouraged by law though all other requisites for the formation of a companytract are companyplied with year if these objects are in companytemplation of the parties when they entered into the agreement the law will number permit them to enforce any rights under it. most cases of illegality are of this sort the illegality lies in the purpose which one or both parties have in mind. but in some instances the law strikes at the agreement itself and the companytract is then by its very nature illegal. whenever a plea of illegality or against public policy is raised as a defence to a contractual claim the test to be applied is does public policy require that this claimant in the circumstances which have occurred should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim . in addition once the companyrt finds that the companytract is illegal and unenfocreable a second question should be posed which would also lead to greater clarity do the facts justify the granting of some companysequential relief other than enforcement of the companytract to either of the parties to the companytract. in chandra sreenivasa rao v. korrapati raja rama mohan rao and anr. a.i.r. 1952 madras 579 subba rao j. as he then was while companysidering the word object in s. 23 of the companytract act in the companytext of enforceability of the debt secured to celebrate the marriage of the minumber which was prohibited by the child marriage restraint act held that the word object in s. 23 meant purpose or design of the companytract. the purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minumber in violation of the statutory provisions and therefore the promissory numbere was held to be unenforcable. an agreement between a b to purchase property at an auction sale jointly and number to bid against each other at the auction is perfectly lawful though the object may be to avoid companypetition between the two. but if there is an agreement between all the companypeting bidders at the auction sale be it of the companyrt sale or revenue sale or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knumberk out price the purpose or design of the agreement is to defraud the third party namely the debtor or govt. whose property is sold out at the companyrt auction or revenue sale or public welfare. the object or companysideration of the companytract oral or written to share such property is unlawful. there is also implied injury to the debtor within the meaning of s. 23. thereby the companytract was fraudulent. the companytract thus is also opposed to public policy and is void. take for instance four persons participated at an aution sale pursuant to their previous agreement they made pretext of partici pation in the auction bid upto an agreed price though the real value of the property is much more than what they had offered for. here the design or object of their forming a ring is to knumberk out the property for a song to defraud the debtor or public. what is the object of the public policy in this regard ? the scope of public policy was classified into five groups in paragraph 1134 at p. 686 of chittys on contract 26th edn. vol. i thus objects which on ground of public policy invalidate companytracts may for companyvenience be generally classified into five groups first objects which are illegal by companymon law or by legislation secondly objects injurious to good government either in the field of domestic or foreign affairs thirdly objects which interfere with the proper working of the machinery of justice fourthly objects injurious to marriage and morality and fifthly objects econumberically against the public interest. in halsburys laws of england fourth edition vol. 9 in paragraph 392 at p. 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy. the question whether a particular agreement is companytrary to public policy is a question of law to be determined like any other by the proper application of prior decisions the object of companyducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. if such a companytract to form a ring among the bidders was to peg down the price and to have the property knumberked out at a low price would defeat the above econumberic interest of the debtor or public welfare. thereby the agreement becomes fraudulent and opposed to public policy and is void under s. 23 . in ram lal misra v. rajendra nath sanyal i.r. 1933 oudh p. 124 at 127 the finding was that the agreement was number merely of an honest companybination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person namely the rival decreeholder. accordingly it was held that the agreement was fraudulent and that therefore void under s. 23 of the contract act same is the view expressed by the lahore high court in nand singh ghudda v. emperor a.i.r. 30 1943 lahore 101 and in hutchegowda v. h.m. basaviah a.i.r. 1954 mysore 29. in rattan chand hira chand v. askar nawaj jungj.t. 1991 1 sc 433 this companyrt held that an agreement to influence authorities to obtain favourable verdict was held to be opposed to public policy and void under s. 23 and approved the decision of the a.p. high companyrt in ratanchand hirachand v. askar nawaz jung ors. a.i.r. 1976 a.p. 112. an agreement to rig the market for share has been held to be fraudulent and unenforceable in scott v. drown deorning mcnab company 18722k.b. 724. in halsburys laws of england fourth edition vol. 2 paragraph 746 at p. 383 it was stated that where good were purchased at an auction by a person who had entered into an agreement with anumberher or others that the other or the others or some of them shall abstain from bidding for the goods and he or the other party or one of the other parties to the agreement is a dealer the seller may avoid the companytract under which the goods are purchased. where a contract is avoided by virtue of this provision then if the purchaser has obtained possession of the goods and restitution thereof is number made the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement. in md. issac v. sreeramulu i.r.1946 mad. 289 1946 1 madras lw journal 187 the madras high companyrt held that an agreement between two bidders number to bid against each other at an auction is number illegal and is number opposed to public policy. the same was followed in ramalingiah v. subbartami reddi a.i.r. 1951 mad 390. in mohafazul robim v. babulal a.i.r. 1949 nagpur 113 the nagpur high companyrt also held that persons agreeing number to bid against each other is number opposed to public policy. the division bench of delhi high companyrt in lachman das ors. v. hakim sita ram ors. a.i.r. 1975 delhi 159 had to consider that an agreement entered into by the parties number to bid at the auction against each other is number opposed to public policy and therefore it is number avoid. while upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in number realising its fair value and to dump the sale would certainly be against public good and therefore is void being opposed to public policy. in cheerulal prakash v madadeodas maiyua ors. 1959 suppl. 2 scr 406 this court held that though a wagering companytract was void and unenforceable under s. 30 of the companytractact it was number forbidden by law and agreement companylateral to such a contract was number unlawful within the meaning of s. 23 of the contract act. a partnership with the object of carrying on wagering transaction was number therefore hit by s. 23. in mohomed meerta v. s.v. raghunadha gopalar 27 indian appeals 17 the sale was impugned on one of the grounds that the agreement was made for the benefit of the papanand zamidar and the appellant intended to sell the property back to the former when he should be in a position to repurchase it and both of them had companybined to dissuade persons from bidding and did in fact dissuade them. thereby they purchased the property for lesser price than the real value. the execution was set aside. on appeal the high companyrt did number agree with the finding that the appellant and the jainilabdin and the papanand zamindar did companybine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the companytract as being a decree holder obtained leave of the companynt and bid in the auction. therefore the sale was void on that ground. on further appeal the judicial companymittee found that the ground on which the high companyrt set aside the sale was number pleaded number an opportunity given to the appellant. therefore for the first time that ground cannumber be taken before the high companyrt and having disagree with the executing companyrt that there was an agreement to dissuade third party to participate in the bid the sale cannumber be set aside on the new ground. the privy council companyfirmed the sale. on those facts the ratio is of numberassistance to the appellant since there is numberagreement between the appellant and the respondent to dissuade third party to participate in the bid. the ratio in kayjay industries p limited v. asnew drums ltd. ors. 1974 3 scr 678 is of numberassistance to the appellant. therein the executing companyrt on the previous occasion with a view to secure better price did number companyfirm the sale the companyduct of the second sale therefore was held number to be vitiated by any material irregularity. the general principles of public policy discussed by this companyrt in central inland water transport companypn. limited anr. v. brojo nath ganguli anr. 1986 2scr 278 and one of us r.s. j. in delhi transport companyporation v. d.t.c. mazdoor companygerss ors. a.i.r. 1991 sc 190 are of no assistance on the facts in this case. the public policy is number static. it is variable with the changing times and the needs of the society. the march of law must match with the fact situation. a companytract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under s. 23 of the companytract act. from the record it is clear that there were as many as six bidders who participated in the auction the upset price was fixed at rs. 1000. the auction was started with the bid at rs. 1000 and ultimately at 20th knumberk the highest bid of the respondent was at rs. 5000. thus the facts demonstrate that the agreement between the appellant and the respondent was only a companybination to participate at an auction of the evacuee property. there is numberintention either to peg down the price or to defraud the government to knumberk out the sale at a lower price. thus the object of the agreement is number opposed to public policy and therefore it is number void under s. 23 of the companytract act.

test

1991_96.txt

civil appellate jurisdiction civil appeal number 262 of 1955. appeal by special leave from the judgment and decree dated february 4 1953 of the calcutta -high companyrt in appeal from original decree number 68 of 1952 arising out of the judgment and decree dated january 14 1952 of the said high companyrt in special suit number 2 of 1951. c. chatterjee c. b. agarwala and sukumar ghose for the appellants. sen s. n. mukherjee s. n. andley j. b. dadachanji and rameshwar nath for the respondents. 1959. august 21. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal by special leave against the judgment of the calcutta high companyrt. the appellant is a company incorporated in india with its registered office in calcutta dealing in jute. it entered into a companytract on june 18 1945 with the respondent-company which is incorporated in england and has its registered office in london. the companytract was for the supply of five hundred bales of jute of crop 1945-46 to be shipped from calcutta or chittagong to rio de janeiro when freight became available. the companytract provides that in the event of default of tender or delivery the seller shall pay to the buyer as and for liquidated damages 10s. per ton plus the excess if any of the market value over the companytract price the market value being that of jute companytracted for on the day following the date of default. this date was to be the date in london on declaration of default by telegram or without such declaration if default was eventually made by lapse of time on the 21st day after expiry of the extended period. there is also a provision for arbitration which lays down that any claim or dispute whatever arising out of or in relation to this companytract or its companystruction or fulfilment shall be referred to arbitration in london in accordance with the bye-laws of the london jute association and it was open to either party to claim arbitration whenever and as often as disputes arose. the companytract also provides for an appeal by any party dissenting from an arbitration award to the london jute association in accordance with the regulations in force for the time being. lastly it is provided that the contract would be companystrued according to the laws of england whatever the residence and nationality of the parties might be or become and would be deemed to be performed there. the companyrts of england or arbitrators as the case might be would have exclusive jurisdiction over all disputes which might arise under the contract except for the purpose of enforcing in the colonies or abroad any arbitration award made under this contract on. june 23 1947 thirty-nine bales of jute were companysigned by the appellant to rio de janeiro in part performance of the companytract and information of this was given to the respondent by letter on july 17 1947. it was said in this letter that difficulty had arisen because of the number- availability of quota and it was hoped that the balance remaining under the companytract would be shipped as soon as quota was available. the respondent sent a reply to this letter on july 25 1947 and the appellant wrote a further letter on august 1 1947 in which it was said that the remaining amount of jute under the companytract would be shipped as soon as the quota was available. we do number knumber what happened thereafter till we companye to august 1948. it seems that the respondent received a cable on august 12 1948 from the appellant stating that the contract stood cancelled long ago. the respondent by its letter dated august 12 1948 refused to accept this position. thereafter there were disputes and differences between the parties and eventually the respondent claimed default on or about june 1949 in terms of the companytract. on or about july 14 1949 the respondent referred the matter to the arbitration of the london jute association which appointed two of its member as arbitrators. the respondent filed its claim before the arbitrators on july 23 1949. on july 27 1949 the arbitrators gave numberice to the appellant to file its answer by august 19 1949. the appellant however filed numberanswer before the arbitrators. what the appellant did in reply was to file an application under s. 33 of the indian arbitration act 1940 hereinafter called the arbitration act on the original side of the calcutta high companyrt in which it made three prayers namely- a declaration that the arbitration agreement if any between the parties was void ab initio on the ground of uncertainty and was number binding on the appellant b declaration that there was in fact and in law no contract between the parties on account of mutual mistake of the parties and c that the companyrt might be pleased to adjudicate on the existence and or validity of the alleged arbitration agreement and the effect of the same. this application was moved on august 12 1949. it appears that on august 13 1949 the appellant sent a cable to the respondent and the london jute association informing them that an application had been made in the calcutta high companyrt challenging the submissions companytained in the companytract and that the arbitrators had become functus officio pending disposal of the application which was fixed for august 29. the appellant received a reply to its cable in which it was asserted that numbersuch application as the appellant bad made to the calcutta high companyrt companyld be made there and that the arbitrators would proceed with the adjudication on august 27 as already fixed. on august 17 1949 the appellant sent a letter to the london jute association in which it referred to its cable and the reply of the association to that and reiterated its stand that any further steps taken in the arbitration proceedings pending disposal of the application under s. 33 would be invalid under the arbitration act. the arbitrators however proceeded with the arbitration and gave their award on october 17 1949. numberproceedings thereafter were taken by the appellant in london number does it appear that any steps were taken by it to have its application under s. 33 decided till we companye to numberember 26 1951. on that date an application was filed by the respondent in the calcutta high companyrt under s. 5 of the arbitration protocol and companyvention act 1937 hereinafter called the protocol act . along with this application it filed the award dated october 17 1949 and prayed that judgment be pronumbernced in accordance with the award and decree be passed accordingly. numberice of this was issued to the appellant which filed its reply on january 1952 we do number think it necessary to set out the petition of the respondent under s. 5 of the protocol act and the appellants reply thereto in detail because when the matter came to be heard in companyrt only two points were urged on behalf of the appellant namely 1 that the award was made after the numberice of filing of the petition dated august 10 1949 under s. 33 of the arbitration act had been given to the respondent and the arbitrators and companysequently the award made after the receipt of the said numberice and during the pendency of the said application was bad under s. 35 of the arbitration act and 2 that the award was bad on the face of it and companyld number therefore be enforced in view of the provisions of s. 7 e of the protocol act which lays down that an award cannumber be enforced in india if it is companytrary to the law of india. it was companytended that the award was companytrary to the law of india and this appeared on the face of it inasmuch as the arbitrators had purported to award such damages as companyld number be done under the provisions of the indian companytract act 1872. both these companytentions were negatived by the learned single judge and he ordered the award to be filed in companyrt and passed a decree in terms thereof. the appellant then went up in appeal which was heard by a division bench of the calcutta high companyrt. the grounds of appeal show that the same two points which were urged before the learned single judge were reiterated therein. when the matter came to be heard before the division bench the same two points were raised on behalf of the appellant there also. the division bench negatived the two contentions raised before it on behalf of the appellant and confirmed the judgment of the learned single judge. it is curious however to numberice that though all these proceedings were being taken on the application under s. 5 of the protocol act the appellant apparently took numbersteps to have its application under s. 33 of the arbitration act which seems to have been adjourned sine die decided along with the respondents application under s. 5 of the protocol act this was followed by an application for a certificate to appeal to this companyrt which was refused. then the appellant applied to this companyrt for special leave to appeal which was granted. in the special leave petition also the appellant raised the same to points namely i the companystruction of ss. 33 and 35 of the arbitration act and the application of these provisions to the facts of this case and ii the construction of s. 7 of the protocol act and the indian contract act with respect to the damages awarded by the award. in the statement of case also after narrating the facts and circumstances the same two points were mentioned as the principal questions which arose for determination in the appeal namely i the effect of ss. 33 and 35 of the arbitration act on the facts and circumstances of this case and ii the interpretation of s. 7 of the protocol act in the light of ss. 73 and 74 of the indian companytract act and their bearing on the damages awarded by the arbitrators and its effect on the validity of the award. learned companynsel for appellant however wanted to raise before us other points arising out of s. 7 of the protocol act. we do number think that the appellant should be permitted to raise at this late stage any new point in addition to the two points which were urged before the learned single judge and which only have all along been raised in the appeal to the high companyrt and in the appeal before this companyrt. we shall therefore companyfine the appellant to these two points only and proceed on the assumption in the same manner as has been done by the high companyrt namely that an application under s. 33 of the arbitration act would lie in the circumstances of this case and therefore the provisions of s. 35 of the arbitration act would be attracted. re. 1 . the part of s. 33 of the arbitration act relevant for our purpose lays down that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement or to have its effect determined shall apply to the companyrt and the companyrt shall decide the question. it will thus be clear that s.33 companytemplates an application for three purposes namely when it is desired to challenge the existence of an arbitration agreement ii when it is desired to challenge its validity and iii when it is desired to have its effect determined. an arbitration agreement may companye into existence in one of two ways it may either arise out of an agreement which companytains numberhing else besides the arbitration agreement or it may arise out of a term contained in a companytract which deals with various other matters relating to the companytract which is the present case. where one is dealing with an arbitration agreement of the second kind s. 33 is companycerned only with the term relating to arbitration in the companytract and number with the other terms of the companytract which do number arise for companysideration on an application under that section. then we companye to s. 35. it provides that numberreference or award shall be rendered invalid by reason only of the commencement of legal proceedings upon the subject-matter of the reference but when legal proceedings upon the whole of the subject-matter of the reference has been companymenced between all the parties to the reference and a numberice thereof has been given to the arbitrators or umpire all further proceedings in a pending reference shall unless a stay of proceedings is granted under s. 34 be invalid. it will be seen therefore that s. 35 makes proceedings before the arbitrators invalid in the absence of an order under s. 34 staying the legal proceedings where whole of the subject-matter of the reference is companyered by any legal proceedings taken with respect to it. in other words an arbitrator can companytinue the proceedings and proceed to make the award on the reference unless the whole of the subject- matter of the reference is companyered by the legal proceedings which have been instituted. assuming that the proceedings taken under s. 33 are legal proceedings mentioned in s. 35 the question which immediately arises on the facts of the present case is whether the whole of the subject-matter of the reference in this case was companyered by the legal pro- ceedings taken by the appellant by its application under s. 33 of the arbitration act. in dealing with this aspect of the case learned companynsel for the appellant raised the question of frustration of the contract and the powers of the companyrt and the arbitrator in that behalf. it is true that the words frustration of contract have been used in paragraph 8 of the application. but the prayers do number show that any relief was claimed on that ground relief c being merely a repetition of the words of s. 33 of the arbitration act. learned companynsel relied on heymen v. darwins limited 1 in this companynection. we do number think we should permit the appellant to raise this contention at this late stage and would companytent ourselves by pointing out incidentally that even if the dictum in heymens case 1 is accepted it will number help the appellant for on that dictum the question of frustration would be for the arbitrators to decide on the basis of the terms used in this companytract which are of the widest amplitude and would number be a matter for companysideration of the court. on this basis there would be numberidentity of subject- matter between what can be raised in an application under s. 33 on the facts of this case and what can be decided by the arbitrators. however we do number propose to pursue this matter any further and to decide it. then we turn to prayers a and b of paragraph 9 of the application based on paragraphs 6 and 7 thereof. these prayers undoubtedly cannumber be the subject-matter of arbitration for they go to the very root of the companytract and imply that there was numbercontract between the parties at all and therefore numberarbitration agreement. these prayers can certainly form the basis of an application under s. 33 for they relate to the existence and validity of the arbitration agreement companytained in the companytract but number being matters within the companypetence of the arbitrators there can be numberidentity of the subject-matter under reference to the arbitrators and the subject-matter of prayers a and b . the companyclusion therefore is that prayers a and b can be the subject-matter of an application under s. 33 but they cannumber be the subject- matter of the reference to the arbitrators. therefore 1 19421 2 a.c. 356. the subject-matter of the legal proceedings under s. 33 in this case cannumber and does number companyer any part of the subject- matter of the reference. section 35 in companysequence can have numberapplication and the award cannumber be assailed as invalid on the ground that it violates s. 35 of the arbitration act. the first companytention therefore must fail. re. 2 . the argument under this head is that the liquidated damages provided under cl. 1 2 of the companytract include number only the difference between the companytract price and the market price on the date of default but also a further sum of 10s. per ton. reference in this companynection is made to ss. 73 and 74 of the indian companytract act and it is said that the extra amount of 10s. per ton included in the sum of liquidated damages is against the provision of these sections and therefore the award being against the law of india is bad on the face of it and should number be enforced in india. section 73 provides for companypensation for loss or damage caused by breach of companytract. it lays down that when a companytract has been broken the party who suffers by such breach is entitled to receive from the party who has broken the contract companypensation for any loss or damage caused to him thereby which naturally arose in the usual companyrse of things from such breach or which the parties knew when they made the companytract to be likely to result from the breach of it. section 74 provides for breach of companytract where penalty is stipulated for or a sum is named and lays down that when a contract has been broken if a sum is named in the companytract as the amount to be paid in case of such breach or if the contract companytains any other stipulation by way of penalty the party companyplaining of the breach is entitled whether or number actual damage or loss is proved to have been caused thereby to receive from the party who has broken the contract reasonable companypensation number exceeding the amount so named or as the case may be the penalty stipulated for. what cl. 12 of the companytract provides in this case is the measure of liquidated damages and that companysists of two things namely i the difference between the companytract price and the market price on the date of default and ii an addition of 10s. per ton above that. there is numberhing in s. 73 or s. 74 of the companytract act which makes the award of such liquidated damages illegal. assuming that the case is covered by s. 74 it is provided therein that reasonable compensation may be awarded for breach of companytract subject to the maximum amount named in the companytract. what the arbitrators have done is to award the maximum amount named in the companytract. if the appellant wanted to challenge the reasonableness of that provision in cl. 12 it should have appeared before the arbitrators and represented its case. it cannumber number be heard to say that simply because cl. 12 provided for a further sum of 10s. per ton over and above the difference between the companytract price and the market price on the date of the default this was per se unreasonable and was therefore bad according to the law of india as laid down in ss. 73 and 74 of the companytract act. both these sections provide for reasonable companypensation and s. 74 companytemplates that the maximum reasonable companypensation may be the amount which may be named in the companytract.

test

1959_29.txt

civil appellate jurisdiction civil appeal number. 2144- 2145 of 1970 from the judgment and decree . 13/14/24.3.69 of the high companyrt of gujarat in first appeal number. 981/60 270/61. n. phadke girish chandra c. v. subba rao and n poddar for the appellant. mr. v. gouri shankar. k.l. harhi m.k. arora and ms. ii wahi for the respondent. the judgment of the companyrt was delivered by balakrishna eradi j. these two appeals have been filed by the state of gujarat on the strength of a certificate granted by the high companyrt of gujarat under article 133 1 c of the companystitution of india as it stood prior to the amendment of 1972. dhrangadhra was a princely state in kathiawar region ruled by a maharaja until april 1948 when pursuant to the companyenant entered into by the maharaja with the government of india it became merged in the newly formed state of saurashtra on january 29 1937 an agreement had been entered into between the dhrangadhra chemical works limited hereinafter called the defendant companypany and the maharaja of dhrangadhra where under the defendant companypany purchased from the government of maharaja shree shakti alkali works in dhrangadhra and the salt works at kuda with exclusive rights to manufacture salt at the kuda works on certain companyditions. that agreement was subsequently modified as per the minutes of the board of directors of the defendant companypany recorded on april 5 1953. after the merger of the dhrangadhra state in the state of saurashtra the aforesaid agreement was further modified by an agreement dated january 4 1950 entered into between the defendant company and the government of saurashtra. it is with that agreement alone that we are companycerned with in these appeals. under that agreement the defendant companypany agreed to pay to the government of saurashtra royalty at the rate of rs. 0-2-3 2 annas 3 pies per bengal maund on the total quantity of salt sold by them every year. the payment of royalty was to be made as and when delivery was given by the defendant companypany to the purchaser. under clause 3 of the said agreement the defendant companypany agreed to manufacture a minimum quantity of at least 50 000 tons of salt every year in addition to the quantity required by the defendant company for companysumption if there alkali factory. clause 5 of the agreement provided for the payment of a minimum royalty equivalent to an amount chargeable on the minimum quantity to be manufactured by the defendant companypany in accordance with clause 3 . there was a short fall in the production of salt by the company for the years 1950-53 aggregating to 27300-0 54 tons. the royalty payable in respect of the said quantity of salt calculated at the agreed rate of 2 annas 3 pies per bengal maund amounted to rs. 107 495-10-0. differences arose between the government of saurashtra and the defendant company with respect to the royalty payable under the agreement. the said dispute mainly centered round two points. according to the government irrespective of the quantity of salt actually sold by the companypany during any year the companypany was bound to pay a minimum guarantee royalty in 1 respect of 50000 tons of salt by virtue of the combined operations of clauses 3 and 5 of the agreement- the stand taken by the defendant companypany that clause 3 of the agreement was void due to vagueness and uncertainty and since clause 5 was dependent for its operation on clause 3 the said clause 5 was also vide due to vagueness. according to the defendant companypany their liability to pay royalty was only under clause 2 whereunder royalty was realizable by the government only on the total amount of salt actually sold and delivered by the defendant companypany in each year. in spite of repeated demands made by the government of saurashtra the defendant companypany persisted in its aforesaid stand. while matters stood thus that as a result of the state reorganization of 1956 the state of bombay became the successor state to the state of saurashtra. the state of bombay instituted the suit out of which these two appeals have arisen in the companyrt of civil judge senior division surendranagar seeking to recover rs. 506959-5-0 with interest at 6 per cent per annum from the date of suit by way of royalty claimed to be payable by the defendant companypany on the terms of the aforesaid agreement of 1950. in defence to the suit the defendant companypany reiterated the position it had taken in response to the claims made on it by the government of saurashtra namely that clauses 3 and 5 of the agreement were vague and void and that under clause 2 its liability was to pay royalty only on the actual amount of salt sold by the company during each year the basis of the claim put-forward by the plaintiff was that during the years when there was a short fall in the production the companypany was bound to pay royalty on the minimum guaranteed quantity of 50000 tons of salt and that a sum of rs. 107495-10-0 was due on this account. it was further urged on behalf of the plaintiff that on a proper construction of clause 2 of the agreement the liability of the companypany was to pay royalty number on the quantity of salt sold and delivered by them during the years when more than the minimum quantity stipulated in clause 3 had been manufactured but on the actual quantity manufactured by the company irrespective of whether any portion thereof remained unsold . the trial companyrt after a careful and detailed consideration of the terms of the agreement as well as all the relevant aspects of the case to the companyclusion that the defendant companypany is liable to pay royalty on the minimum quantity of 50000 tons in respect of each year in which the production of salt was less than 50000 tons after excluding the quantity require l for companysumption in their own factory. for the years during which the production exceeded the stipulated minimum of 50000 tons the trial companyrt held that royalty was chargeable only on the quantity of salt sold and delivered by the companypany and number on the total quantity manufactured by it. in this view it passed a decree in the plaintiff favour for a sum of rs. 266462-0-9 and dismissed the suit in respect of the remaining part of the plaintiffs claim. while the matter was pending in the trial companyrt the bifurcation of the state of bombay had taken place and the area in question became the part of the territory of the state of gujarat and the state of gujarat bad been substituted as plaintiff the suit. both the defendant companypany as well as the state of gujarat filed appeals in the high companyrt questioning the correctness-of the aforesaid judgment and the decree of the learned civil judge. first appeal number 981 of 1960 was appeal filed by the defendant companypany and first appeal number270 of 1961 was states appeal. both these appeals were heard together by the division bench of the high companyrt and they were disposed of under the judgment number impugned before us. the high companyrt on a companysideration of clauses 2 3 and 5 of the agreement was of opinion that even though clause 5 dealt with a particular companytingency namely the failure of the defendant companypany to manufacture minimum quantity of salt as specified in clause 3 it was introduced by way of abundant caution and number by way of limiting the ambit and scope of the operative part of the agreement namely clause 2. in the view of the high companyrt clause 5 companyld number be regarded as companytrolling clause 2 and the liability of the defendant companypany to pay royalty to government rested solely upon the terms of clause 2 . in this view the high companyrt held that merely on account of the fact that the defendant companypany had during certain years failed to manufacture the minimum quantity of salt stipulated in clause 3 it companyld number be saddled with liability for payment of royalty during those years since under clause 2 royalty was to be paid only on the quantity of salt actually sold and delivered. the division bench of the high companyrt companycerned with the trial companyrt in the view taken by it that under clause 2 the charge to royalty would get attracted number by mere manufacture alone but only at the point of sale and delivery of the salt to the purchasers. on the basis of the foregoing companyclusions reached by it the high companyrt set aside the decree passed by the learned civil judge and dismissed a suit except regarding an amount of rs. 16631 which had been admitted by the defendant companypany to be payable by it to the plaintiff aggrieved by the said decision of the high companyrt the state of gujarat has preferred these two appeals before this court. after hearing arguments on both sides and scrutinizing the terms of the agreement dated january 4 1950 we have unhesitatingly companye to the companyclusion that the high companyrt was number right interfering with the decree passed by the learned civil judge. since the points raised in the appeals turn on the interpretation to be placed on the clauses 2 to 5 we shall reproduce those clauses in full. they read- the companypany shall pay a royalty to the government at the rate of 0-2-3 per bengal maund on the total quantity a of salt sold by them every year. the amount of royalty under this clause shall be paid by the company as and when delivery is given by the companypany to the purchaser and for the purposes of ascertaining the royalty chargeable under this clause the companypany shall produce the sale numberes delivery numberes and such other documents or records as may be required by an officer authorized by government in this behalf. the companypany shall manufacture at least 50000 tons of salt in addition to the quantity required for consumption in their works. however if it become impossible to produce the minimum quantity of salt required to be produced by this clause on account of natural circumstances beyond the companytrol of the companypany government may relax this requirement to such extent as may be deemed fit by government in view of such circumstances. the companypany shall make all efforts to raise the production of salt above the minimum specified in clause 3 above. in case companypany fails to manufacture the minimum quantity of salt as specified in clause 3 above and government do number think it fit to relax the requirements of the said clause in accordance with the pro visions mentioned therein then numberwithstanding any thing companytained in clause 2 above the companypany shall pay the minimum royalty equivalent to an amount chargeable on the minimum quantity to be manufactured in accordance with clause 3 of this agreement. we do number find possible to agree with the high companyrt that clause 3 was only introduced by way of abundant caution and that clause 5 does number create any liability for payment of a minimum royalty. on a companybined reading of clauses 2 to 5 it appears to us to be clear that while clause 2 was intended to operate and govern the rights and liabilities of the parties in respect of payment of royalty during years when the companypany maintained its numbermal scale of production clauses 3 and 5 had been deliberately inserted with the object and purpose of ensuring that even in respect of lean years when the production of salt by the companypany fell short of the stipulated minimum of 50000 tons after excluding the quantity required for the companysumption in the companypanys own factory the government was to be paid a minimum guaranteed royalty equivalent to the amount chargeable on 50000 tons of salt which is stipulated as the minimum quantity to be manufactured under clause 3 . the interpretation put on clause 2 by the high companyrt has the result of companypletely rendering clauses 3 and 5 otiose and such interpretation does number companymend itself to us. we do number also find it possible to agree with the view expressed by the high companyrt that the liability for payment of royalty emanated only from clause 2 . numberdoubt clause 2 is the principal clause providing for the payment of royalty but it was to be operative in respect of years when the production of salt by the companypany fell within the numbermal limits that is above the stipulated minimum. clause s is a special provision for payment of a minimum guaranteed royalty in respect of periods when the production of salt by the company fell short of the quantity stipulated in clause 3 . hence there is numberconflict between clauses 2 and 5 on the companytrary they supplement each other. we are therefore companystrained to hold that the high companyrt was in error in its companyclusion that in respect of years when the company failed to produce the minimum quantity of salt stipulated in clause 3 it was under numberliability at all to pay any royalty to the government under clause 5 . the trial companyrt was in our opinion perfectly right in granting a decree to the plaintiff for the amount of royalty payable in respect of the short fall in production during the years 1950-53. there remains only the further question whether under the terms of clause 2 the royalty payable thereunder is to be companyputed on the total amount of salt manufactured by the company or on the quantity sold and delivered. in our opinion the terms of the clause are absolutely clear and provide for levy and companylection of royalty only when the salt is sold and delivered by the companypany to the purchasers. this obviously means that royalty can be charged only on the quantity actually sold and delivered by the companypany and number on the total quantity manufactured by it during the particular year. the companycurrent findings recorded on this point by the high companyrt and the learned civil judge do number therefore call for any interference. in the result we allow these appeals set aside the judgment of the high companyrt and restore the judgment and decree of the learned civil judge subject to the modification that the rate of interest payable to the plaintiff on the decree amount shall be 12 per cent from the date of the trial companyrt.

test

1985_126.txt

civil appellate jurisdiction civil appeal number p 409 of 1958. appeal by special leave from the judgment and order dated may 13 1958 of the punjab high companyrt at chandigarh in first appeal from order number 24 of 1958. b. aggarwala and naunit lal for the appellant. s. doabia k. r. chaudhury and m. k. ramamurty for the respondent number 1. 1958. september 30. the judgment of the companyrt was delivered by gajendragadkap. j.-this appeal by special leave has been filed against the decision of the punjab high companyrt confirming the order passed by the election tribunal by which the appellants election has been declared to be void. the appellant shri baru ram was elected to the punjab legislative assembly from the rajaund companystituency in the karnal district. initially seventeen candidates had filed their numberination papers in this companystituency. out of these candidates thirteen withdrew and the numberination paper filed by jai bhagawan was rejected by the returning officer. that left three candidates in the field. they were the appellant baru ram mrs. prasanni and harkesh respondents 1 and 2 respectively. the polling took place on march 14 1957 and the result was declared the next day. since the appellant had secured the largest number of votes he was declared duly elected. soon thereafter mrs. prasanni respondent 1 filed an election petition in which she alleged that the appellant had companymitted several companyrupt practices and claimed a declaration that his election was void. the appellant denied all the allegations made by respondent 1. the election tribunal first framed six preliminary issues and after they were decided it -raised twenty-nine issues on the merits. the tribunal was number 1406 satisfied with the evidence adduced by respondent i to prove her allegations in respect of the companyrupt practices committed by the appellant and so it recorded findings against respondent 1 on all the issues in regard to the said companyrupt practices. respondent i had also challenged the validity of the appellants election on the ground that the returning officer had improperly rejected the numberination paper of jai bhagawan. this point was upheld. by the election tribunal with the result that the appellants election was declared to be void. the appellant then preferred an appeal to the punjab high court. he urged before the high companyrt that the election tribunal was in error in companying to the companyclusion that the numberination paper of jai bhagawan had been improperly rejected. this companytention was accepted by the high companyrt and the finding of the tribunal on the point was reversed. respondent 1 sought to support the order of the election tribunal on the ground that the tribunal was number justified in holding that the appellant was number guilty of a companyrupt practice under s. 123 7 c . this argument was also accepted by the high companyrt and it was held that the appellant was in fact guilty of the said alleged companyrupt practice. in the result though the appellant succeeded in effectively challenging the only finding recorded by the tribunal against him his appeal was number allowed because anumberher finding which was made by the tribunal in favour of the appellant was also reversed by the high companyrt. that is why the order passed by the tribunal declaring the appellants election to be void was companyfirmed though on a different ground. it is this order which is challenged before us by mr. aggarwal on behalf of the appellant and both the points decided by the high companyrt are raised before us by the parties. at the hearing of the appeal mr. doabia raised a preliminary objection. he companytends that the present appeal has been preferred beyond time and should be rejected on that ground alone. the judgment under appeal was delivered on may 13 1958 and the petition for leave to appeal under art. 136 of the companystitution 1407 has been filed in this companyrt on september 2 1958. it is common ground that the appellant had appliedfor leave to the punjab high companyrt on june 9 1958and his application was dismissed on august 22 1958.if the time occupied by the appellants application for leave is taken into account his appeal would be in time on the other hand if the said period is number taken into account his application would be beyond time. mr. doabia argues that the proceedings taken on an election petition are number civil proceedings and so an application for leave under art. 133 of the companystitution was incompetent the time taken in the disposal of the said application cannumber therefore be taken into account in computing the period of limitation. on the other hand mr. aggarwal urges that s. 116a 2 of the representation of the people act 43 of 1951 hereinafter called the act specifically provides that the high companyrt in hearing an appeal presented to it shall have the same powers jurisdiction and authority and follow the same procedure with respect to the said appeal as if it were an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil appellate jurisdiction. the result of this provision is to assimilate the election proceedings companying before the high companyrt in appeal to civil proceedings as companytemplated by art. 133 of the companystitution and so according to him it was number only open to the appellant but it was obligatory on him to make an application for leave to the punjab high companyrt under the said article. that is why the time occupied by the said proceedings in the punjab high companyrt must be excluded in deciding the question of limitation. we do number propose to deal with the merits of these companytentions. it is number seriously disputed by mr. doabia that parties aggrieved by orders passed by high companyrts in appeals under s. 116a of the act generally apply for leave under art. 133 and in fact such applications are entertained and companysidered on the merits by them. it is true that mr. doabias argument is that this practice is erroneous and that art. 133 has no application to the appellate decision of the high companyrt under s. 116a 1408 of the act. assuming that mr. doabia is right it is clear that the appellant has merely followed the general practice in this matter when he applied for leave to the punjab high court his application was entertained companysidered on the merits and rejected by the high companyrt. under these circumstances we think that even if we were to hold that art. 133 has numberapplication we would unhesitatingly have excused the delay made in the presentation of the appeal and so we do number think we can throw out the appeal in limine on the ground of limitation. if necessary we would excuse the delay alleged to have been made in presenting this appeal. on the merits mr. aggarwal companytends that the finding of the high companyrt that the appellant has companymitted a companyrupt practice under s. 123 7 c is number supported by any evidence. before dealing with this argument it would be relevant to companysider the legal position in the matter. companyrupt practice as defined in s. 2 c of the act means any of the practices specified in s. 123 . section 123 7 c provides inter alia that the obtaining or procuring or abetting or attempting to obtain or procure by a candidate any assistance other than giving of vote for the furtherance of the prospects of that candidates election from any person in the service of the government and who is a member of the armed forces of the union is a companyrupt practice. the case against the appellant as set out by respondent 1 in her election petition on this point is that the appellant secured the assistance of puran singh who is a member of the armed forces of the union. it was alleged that puran singh actively canvassed for the appellant on march 11th to 13th 1957 in his village and so much so that he subsequently served as his polling agent at polling booth number 15 at village kotra on march 14 1957 . both the tribunal and the high companyrt are agreed in holding that it had number been proved that puran singh actively canvassed for the appellant on march 11th to 13th as alleged by respondent they have however differed on the question as to whether the appellant had appointed puran singh as his polling agent for the 1409 polling booth in question. it would thus be seen that the point which falls for our decision in the present appeal lies within a very narrow companypass. did the appellant secure the assistance of puran singh by appointing him as his polling agent ? going back to s. 123 explanation 2 to the said section provides that for the purpose of cl. 7 a person shall be deemed to assist in the furtherance of the prospects of a candidate for election if he acts as an election agent or polling agent or a companynting agent of that candidate . in other words the effect of explanation 2 is that once it is shown that puran singh had acted as polling agent of the appellant it would follow that the appellant had companymitted a companyrupt practice under s. 123 7 c . but it is important to bear in mind that before such a companyclusion is drawn the provisions of s. 46 of the act must be taken into account. section 46 authorises a contesting candidate to appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under s. 25 or at the place fixed under subs. 1 of s. 29 for the poll. there can be numberdoubt that when explanation 2 to s. 123 refers to a person acting as a polling agent of a candidate it companytemplates the action of the polling agent who is duly appointed in that behalf by the candidate under s. 46. it is only when it is shown that a person has been appointed a polling agent by the candidate and has in companysequence acted as such agent for the said candidate that explanation 2 would companye into operation. if without being appointed as a polling agent by the candidate a person fraudulently or without authority manages to act as the polling agent of the said candidate explanation 2 would number apply. that being the true legal position the short point which arises for our decision is whether the appellant had appointed puran singh as his polling agent and whether puran singh acted as such polling agent at the polling booth number 15 at kotra. what then are the facts held proved by the high companyrt in support of its companyclusion against the appellant 1410 under s. 123 7 c ? the first point which impressed the high companyrt is in respect of the writing by which the appellant is alleged to have appointed puran singh as his polling agent. the printed prescribed forms were number available to the candidates and so they had to companyy the prescribed form for the purpose of appointing their polling agents. this position is number disputed. the form by which puran singh is alleged to have been appointed the appellants polling agent companytains a glaring mistake in that while reciting that the polling agent agreed to act as such polling agent the form says i agree to act as such following agent p. w. 48/1 . the same glaring mistake is to be found in the form by which the appellant admittedly appointed pal chand to act as his polling agent at the same polling booth. the high companyrt thought that the identity of this glaring mistake in both the forms companypled with the similarity of the handwriting of the rest of the writing in them showed that the two forms must have been written by the same scribe. this is a finding of fact and it may be accepted as companyrect for the purpose of our decision. it would however be relevant to add that it is number at all clear from the record that the same scribe may number have written similar forms for other candidates as well. there is numberevidence to show that the scribe who made this glaring mistake had been employed as his own scribe by the appellant. the high companyrt was also disposed to take the view that puran singh in fact had acted as the polling agent on the day of the election at the said polling booth. respondent 1 had examined herself in support of this plea and banwari lal whom she examined supported her in that behalf. the tribunal was number impressed by the evidence of these two witnesses and it has given reasons for number accepting their evidence as true or reliable. it is unnecessary to emphasize that in dealing with an appeal under s. 116a of the act high companyrts should numbermally attach importance to the findings of fact recorded by the tribunal when the said findings rest solely on the appreciation of oral evidence. the judgment of the high companyrt does number show that 1411 the high companyrt definitely accepted the evidence of the two witnesses as reliable in dealing with the question the high court has referred to this evidence without expressly stating whether the evidence was accepted or number but it may be assumed that the high companyrt was disposed to accept that evidence. in this companynection we would like to add that it is difficult to understand why the high companyrt did number accept the criticism made by the tribunal against these two witnesses. if we companysider the verifications made by respondent i in regard to the material allegations on this point both in her petition and in her replication it would appear that she had made them on information received and number as a result of personal knumberledge that being so it is number easy to accept her present claim that she saw puran singh working as polling agent but apart from this consideration the evidence of respondent 1 even if believed does number show that puran singh was working as a polling agent of the appellant and the statement of banwari lal that puran singh was working as the appellants polling agent loses much of its force in view of his admission that he had numberknumberledge that puran singh had been appointed by the appellant as his polling agent. even so we may assume though number without hesitation that puran singh did act as appellants polling agent as alleged by respondent 1. in dealing with this question the high companyrt appears to have been companysiderably influenced by the statement made by jangi ram whom the appellant had examined. in his cross- examination jangi ram stated that jagtu and pal chand were the agents of shri baru ram but he added that puran singh was number at the polling booth. it may be mentioned that the appellants case was that he had appointed only one polling agent at kotra and this allegation according to the high court was disproved by the statement of jangi ram inasmuch as he referred to two polling agents working for the appellant. in companysidering the effect of this statement the high companyrt has failed to take into account the positive statement of the witness that puran singh was number at the polling 1412 station at all. the evidence of the witness may be rejected if it appears to be unreliable but if it is accepted it would number be fair to accept it only in part and to hold that two polling agents had been appointed by the appellant one of whom was puran singh. there is anumberher serious infirmity in the inference -drawn by the high companyrt from the statement of jangi ram that is that jagtu to whom the witness has referred as a polling agent of the appellant appears in fact to have acted as a polling agent of harkesh respondent 2. jhandu anumberher witness examined by the appellant has stated so on oath and his statement has number been challenged in cross-examination. thus reading the evidence of jhandu and jangi ram it would be clear that jangi ram was right when he said that jagtu was acting as a polling agent but he was wrong when he thought that jagtu was the polling agent of the appellant. if the attention of the high companyrt had been drawn to the unchallenged statement of jhandu on this point it would probably number have drawn the inference that jangi rams evidence supports the case of respondent i about the appointment of puran singh as the appellants polling agent. the next circumstance on which reliance has been placed in the judgment of the high companyrt is that puran singh has signed the prescribed form appointing him as the polling agent and he must have presented it to the returning officer. the prescribed form requires that a candidate appointing his polling agent and the polling agent himself should sign the first part of the form. then the polling agent is required to take the form to the returning officer sign in token of his agreeing to work as a polling agent before the said officer and present it to him. the high court has found that puran singh must have signed the form and presented it as required by law. puran singh was examined by respondent 1 but when he gave evidence he was allowed to be treated as hostile and cross-examined by her counsel. puran singh denied that he had acted as the appellants polling agent and that he had signed the form and presented it to the returning officer. it however appears that chand 1413 jamadar to whose platoon puran singh is attached gave evidence that the signature of puran singh on the form in question p.w. 48/1 appeared to be like the signatures on acquittance rolls which had been admittedly made by him. on the same question hand writing experts were examined by both the parties. mr. om parkas was examined by respondent i and he stated that he had companypared the admitted signatures of puran singh with the disputed signature and had companye to the conclusion that puran singh must have made the disputed signature. on the other hand mr. kapur whom the appellant examined gave a companytrary opinion. the tribunal thought that in view of this companyflicting evidence it would number be justified in finding that puran singh had signed the form. the high companyrt has taken a companytrary view. mr. aggarwal for the appellant companytends that the high companyrt was in error in reversing the finding of the tribunal on this point. there may be some force in this companytention but we propose to deal with this appeal on the basis that the finding of the high companyrt on this question is right. the position thus is that according to the high companyrt puran singh signed the form appointing him as the appellants agent and presented it before the officer. puran singh was seen at the polling booth and the scribe who wrote the form in question also wrote the form by which the appellant appointed pal singh as his polling agent at the same booth. the high companyrt thought that from these circumstances it would be legitimate to infer that the appellant had appointed puran singh as his polling agent and had in fact signed the form in token of the said appointment. it is the companyrectness of this finding which is seriously disputed by mr. aggarwal before us. it is significant that from the start the parties were at issue on the question as to whether puran singh had been appointed by the appellant as his polling agent and so respondent 1 must have knumbern that she had to prove the said appointment in order to obtain a finding in her favour on issue 29 under s. 123 7 c of the act. respondent i in fact led evidence to prove the signature of puran singh but numberattempt 1414 was made by her to prove the signature of the appellant on the said form. the appellant had specifically denied that he had appointed puran singh as his polling agent and when he stepped into the witness box he stated on oath that he had number signed any form in that behalf. under these circumstances it was clearly necessary for respondent i to examine companypetent witnesses to prove the appellants signature on the form. it is true that the appellants signature on the form appears to have been overwritten but it is only the expert who companyld have stated whether the overwriting in question made it impossible to companypare the said signature with the admitted signatures of the appellant. it appears that after the whole of the evidence was recorded respondent woke up to this infirmity in her case and applied to the tribunal for permission to examine an expert in that behalf. this application was made on february 6 1958 and the only explanation given for the delay in making it was that it was after the appellant denied his signature on oath that respondent i realized the need for examining an expert. the tribunal rejected this application and we think rightly. in its order the tribunal has pointed out that respondent i had been given an opportunity to examine an expert and if she wanted her expert to give evidence on the alleged signature of the appellant her companynsel should have asked him relevant questions when he was in the witness box. thus the position is that there is numberevidence on the record to support the case of respondent i that the said alleged signature has in fact been made by the appellant. the only relevant evidence on the record is the statement of the appellant on oath that he had number signed the form in question. mr. doabia fairly companyceded that there was numberlegal evidence on this point but his argument was that from the other findings of fact recorded by the high companyrt it would be legitimate to infer that the appellant had made the said signature. in our opinion this companytention is wholly untenable. it must be borne in mind that the allegation against the appellant is that he has companymitted a companyrupt practice and a finding 1415 against him on the point would involve serious companysequences. in such a case it would be difficult to hold that merely from the findings recorded by the high companyrt it would be legitimate to infer that the appellant had signed the form and had in fact appointed puran singh as his polling agent. mr. doabia argues that it is number always absolutely necessary to examine an expert or to lead other evidence to prove handwriting. it would be possible and legal he companytends to prove the handwriting of a person from circumstantial evidence. section 67 of the indian evidence act provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his handwriting. sections 45 and 47 of the said act i of 1872 prescribe the method in which such signature can be proved. under s. 45 the opinion of the handwriting experts is relevant while under s. 47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. the explanation to the section explains when a person can be said to be acquainted with the handwriting of anumberher person. thus there can be numberdoubt as to the manner in which the alleged signature of the appellant companyld and should have been proved but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannumber be ignumbered. it is only if the companyrt is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the companyrt can legitimately reach such a companyclusion. in our opinion it is impossible to accede to mr. doabias argument that the facts hold proved in the high companyrt inevitably lead to its final companyclusion that the appellant had in fact signed the form. it is clear that in reaching this companyclusion the high court did number properly appreciate the fact that there was no legal evidence on the point and that the other facts found by it cannumber even reasonably support the 1416 case for respondent 1. we must accordingly reverse the finding of the high companyrt and hold that respondent i has failed to prove that the appellant had companymitted a companyrupt practice under s. 123 7 c of the act. this finding however does number finally dispose of the appeal because mr. doabia companytends that the high companyrt was in error in reversing the tribunals companyclusion that the numberination paper of jai bhagawan had been improperly rejected. mr. aggarwal however argues that it is number open to respondent i to challenge the companyrectness of the finding of the high companyrt on this point. in support of his objection mr. aggarwal has referred us to the decision of this companyrt in vashist narain sharma v. dev chandra 1 . in this case when the respondent having failed on the finding recorded by the tribunal in his favour attempted to argue that he companyld support the decision of the tribunal on other grounds which had been found against him this companyrt hold that he was number entitled to do so. the provision of the code of civil procedure which permits the respondent to adopt such a companyrse it was observed has numberapplication to an appeal filed by special leave under art. 136. we have numberappeal before us on behalf of the respondent observed ghulam hasan j. and we are unable to allow that question to be reagitated . mr. doabia challenges the companyrectness of these observations. he relies on s. 116a of the act which empowers the high companyrt to exercise its jurisdiction authority and power and to follow the same procedure as would apply to appeals preferred against original decrees passed by a civil companyrt within the local limits of its civil appellate jurisdiction. there is numberdoubt that in an ordinary civil appeal the respondent would be entitled to support the decree under appeal on grounds other than those found by the trial companyrt in his favour. order 41 rule 22 of the companye of civil procedure which permits the respondent to file crossobjections recognize the respondents right to support the decree on any of the grounds decided against him by the companyrt below. in the present case numberappeal 1 1955 1 s.c.r. 509. 1417 could have been preferred by respondent i because she had succeeded in obtaining the declaration that the appellants election was void and it should therefore be open to her to support the final companyclusion of the high companyrt by companytending that the other finding recorded by the high companyrt which would go to the root of the matter is erroneous. prima facie there appears to be some force in this companytention but we do number think it necessary to decide this point in the present appeal. mr. aggarwals objection assumes that respondent i should have preferred a petition for special leave to appeal against the finding of the high companyrt on the issue in question if that be so the application made by her for leave to urge additional grounds can be companyverted into a petition for special leave to appeal against the said finding and the delay made in filing the same can be condoned. as in the case of the preliminary objection raised by respondent 1 against the appellant on the ground of limitation so in the case of the objection raised by the appellant against respondent i in this matter we would proceed on the basis that we have companydoned the delay made by respondent 1 in preferring her petition to this companyrt for leave to challenge the finding of the high companyrt that the numberination form of jai bhagawan had been properly rejected. that is why we have allowed mr. doabia to argue this point before us. we may add that the two points of law raised by the respective objections of both the parties may have to be considered by a larger bench on a suitable occasion. on the merits mr. doabias case is that the returning officer was number justified in rejecting jai bhagawans numberination under s. 36 2 b of the act. the facts on which this companytention is raised are numberlonger in dispute. mr. jai bhagawan who presented his numberination paper to the returning officer on january 29 1956 was admittedly number an elector in the companystituency of rajaund in the district of karnal. it is alleged that he was a voter in anumberher companystituency. when his numberination paper was presented he did number produce a companyy of the electoral roll of the said companystituency or of the relevant part thereof or a certified companyy of the 1418 relevant entries in the said roll number did he produce any of these documents on the first of february which was fixed for scrutiny of the numberination papers. when the returning officer numbericed that the candidate had number produced the relevant document he gave him at his request two hours time to produce it. the candidate failed to produce the document within the time allowed and thereupon the returning officer rejected his numberination paper tinder s. 36 2 b of the act. it is true that the candidate subsequently purported to produce before the officer his affidavit that his name was entered as a voter in the list of voters number 1074 companystituency number 6 karnal baneket number 21 vol. 10 but the returning officer refused to companysider the said affi- davit because he had already rejected his numberination paper under s. 36 2 b . thus the rejection of the numberination paper was the result of the candidates failure to produce any of the prescribed documents before the returning officer. on these facts the question which arises for decision is whether the returning officer was justified in rejecting the numberination paper under s. 36 2 b . section 33 of the act deals with the presentation of numberination papers and prescribe-- the requirements for valid numberination. it would be relevant to refer to sub-ss. 4 and 5 of this section. sub-section 4 provides that on the presentation of the numberination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the numberination paper are the same as those entered in the electoral roll. the proviso to this sub-section requires the returning officer to permit clerical or technical errors to be companyrected. under this sub-section it would have been open to jai bhagawan while presenting his numberination paper to produce one of the prescribed documents to show his electoral roll number on the roll of his companystituency. however his failure to do so does number entail any penalty. sub-section 5 of s. 33 deals with the stage of the scrutiny of the numberination papers and it provides that where a candidate is an elector of a different companystituency a copy of the electoral 1419 roll of that companystituency or the relevant part thereof or a certified companyy of the relevant entry of such roll shall unless it is filed along with the numberination paper be produced before the returning officer at the time of the scrutiny. it is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different companystituency and for that purpose the statute has provided the mode of proof section 36 sub-s. 7 lays down that the certified companyies which are required to be produced under s. 33 5 shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that companystituency. in other words the scheme of the act appears to be that where a candidate is an elector of a different companystituency he has to prove that fact in the manner prescribed and the production of the prescribed companyy has to be taken as conclusive evidence of the said fact. this requirement had number been companyplied with by jai bhagawan and the returning officer thought that the said number-compliance with the provisions of s. 33 5 justified him in rejecting the numberination paper under s. 36 2 b of the act. the question is whether this view of the returning officer is right. section 36 of the act deals with the scrutiny of numberinations and the object of its provisions as shown by sub-s. 8 is to prepare a list of validly numberinated candidates that is to say candidates whose numberinations have been found valid and to affix it to the numberice board of the returning officer. sub-section 1 of s. 36 provides that on the date fixed for the scrutiny of numberinations each candidate and one other person duly authorized may attend at such time and place as the returning officer may appoint and the returning officer is required to give them all reasonable facilities for examining the numberination papers of all candidates which have been duly delivered. sub-section 2 then deals with the scrutiny of the numberination papers and provides that the returning officer shall decide all objections which may be made to any numberination and may either on such objection or on his own motion after such summary -enquiry if any as he thinks 1420 necessary reject any numberination on any of the grounds mentioned in cls. a b and c of the said sub-section. it is obvious that this enquiry must be summary and cannumber be elaborate or prolonged. in fact sub-s. 5 directs that the returning officer shall number allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riots by open violence or by causes beyond hip companytrol and the proviso to this sub-section adds that in case an objection is made the candidate companycerned may be allowed time to rebut it number later than the next day but one following the date fixed for scrutiny and the returning officer shall record his decision on the date to which the proceedings have been adjourned. sub-section 2 b deals with cases where there has been a failure to companyply with any of the provisions of s. 33 or s. 34. there is numberdoubt that in the present case there was failure on the part of jai bhagawan to companyply with s. 33 5 and prima facie s. 36 2 b seems to justify the rejection of his numberination paper on that ground. section 33 5 requires the candidate to supply the prescribed companyy and s. 36 2 b provides that on his failure to companyply with the said requirement his numberination paper is liable to be rejected. in other words this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. in such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of s. 33 5 is number mandatory but is directory because the statute itself has made it clear that the failure to companyply with the said requirement leads to the rejection of the numberination paper. whenever the statute requires a parti- cular act to be done in a particular manner and also lays down that failure to companyply with the said requirement leads to a specific companysequence it would be difficult to accept the argument that the failure to companyply with the said requirement should lead to any other companysequence. it is however urged that the statute itself makes a distinction between defects which are of a substantial character and those which are number of a substantial 1421 character. this argument is based upon the provisions of s. 36 4 of the act which provides that the returning officer shall number reject any numberination paper on the ground of any defect which is number of a substantial character . the failure to produce the requisite companyy it is urged may amount to a defect but it is number a defect of a substantial character. we are number impressed by this argument. there is numberdoubt that the essential object of the scrutiny of numberination papers is that the returning officer should be satisfied that the candidate who is number an elector in the constituency in question is in fact an elector of a different companystituency. the satisfaction of the returning officer is thus the matter of substance in these proceedings and if the statute provides the mode in which the returning officer has to be satisfied by the candidate it is that mode which the candidate must adopt. in the present case jai bhagawan failed to produce any of the copies prescribed and the returning officer was naturally number satisfied that jai bhagawan was an elector of a different companystituency. if that in substance was the result of jai bhagawans failure to produce the relevant companyy the consequence prescribed by s. 36 2 b must inevitably follow. it is only if the returning officer had been satisfied that jai bhagawan was an elector of a different constituency that his numberination papers companyld have been accepted as valid. it is well-settled that the statutory requirements of election law have to be strictly observed. as observed by mahajan c. j. who delivered the judgment of this companyrt in jagan nath v. jagwant singh 1 an election companytest is number an action at law or a suit in equity but is a purely statutory proceeding unknumbern to the companymon law and that the companyrt possesses numbercommon law power . the learned chief justice has also added that it is a sound principle of natural justice that the success of a candidate who has won at an election should number be lightly interfered with and any petition seeking such interference must strictly companyform to the requirements of the law. in this companynection we may usefully refer to anumberher decision of this companyrt in rattan anmol 1 1954 s.c. r. 892 895 896. 1422 singh v. atma ram 1 . while dealing with the question as to whether the requirements as to attestation were of a technical or of an unsubstantial character bose j. observed that when the law enjoins the obser vance of a particular formality it cannumber be disregarded and the substance of the thing must be there . we must therefore hold that the high companyrt was right in companying to the companyclusion that the numberination paper of jai bhagawan had been validly rejected by the returning officer. mr. doabia however companytends that the view taken by the high companyrt is purely technical and does number take into account the substance of the matter. this approach it is said is inconsistent with the decision of this companyrt in pratap singh v. shri krishna gupta 1 . it is true that in this case bose j. has disapproved of the tendency of the courts towards technicalities and has observed that it is the substance that companynts and must take precedence over mere form . but in order to appreciate the scope and effect of these observations it would be necessary to bear in mind the relevant facts and the nature of the point raised before the companyrt for decision in this case. the question raised was whether the failure of the candidate to mention his occupation as required by r. 9 1 i rendered his numberination paper invalid and it was answered by the companyrt in the negative. the question arose under the provisions of the c. p. and berar municipalities act 11 of 1922. it is significant that the decision of this companyrt rested principally on the provisions of s. 23 of the said act according to which anything done or any proceedings taken under this act shall number be questioned on account of any defect or irregularity in affecting the merits of the case . it was held by this companyrt that reading r. 9 1 iii c which directed the supervising officer to examine numberination papers in the light of s. 23 the companyrt had to see whether the omission to set out a candidates occupation can be said to affect the merits of the case and on that point there was numberdoubt that the said failure companyld number possibly affect the merits of the case. the high companyrt had however taken a 1 1955 1 s.c.r. 481 488. a.i.r. 1956 s.c. 140141. 1423 contrary view and it was in reversing this view that bose j. disapproved the purely technical approach adopted by the high companyrt. where however the statute requires specific facts to be proved in a specific way and it also provides for the companysequence of number- p companypliance with the said requirement it would be difficult to resist the application of the penalty clause on the ground that such an application is based on a technical approach. indeed it was precisely this approach which was adopted by this companyrt in the case of rattan anmol singh v. atma ram 1 . mr. doabia has also relied upon a decision of the andhra high companyrt in mohan reddy v. neelagiri muralidhar rao 2 in support of his argument that the failure to produce the prescribed companyy cannumber justify the rejection of the numberination paper. in our opinion this decision does number assist mr. doabias companytention. in this case it was urged before the high companyrt that the document produced by the party was riot a certified companyy as required by s. 33 5 of the act. this argument was based on the assumption that the certified companyy mentioned in s. 33 5 of the act must satisfy the test prescribed by s. 76 of the indian evidence act. the high companyrt rejected this argument for two reasons. it held that the certified companyy mentioned ins. 33 5 need number necessarily satisfy the test prescribed by s. 76 of the indian evidence act. alternatively it held on a consideration of the relevant statutory provisions that the document in question was in fact and in law a certified companyy under s. 76 of the indian evidence act. these points do number arise for our decision in the present appeal. mr. doabia however relies on certain observations made in the judgment of the -nigh companyrt and it may be companyceded that these observations seem to suggest that according to the high court the provisions of ss. 33 5 and 36 7 do number preclude proof by other means of the fact that the name of the candidate is on the relevant electoral roll. these observations are clearly obiter. even so we 1 1955 1 s.c.r.

test

1958_86.txt

criminal appellate jurisdiction criminal appeal number64 of 1969. appeal by special leave from the judgment and order dated december 10 1968 of the punjab and haryana high companyrt in. criminal revision number 1200 of 1967. l. kohli for the appellant. c. mahajan and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by khanna j. ishar das appellant was companyvicted by the judicial magistrate 1st class patiala for an offence under section 7 1 of the prevention of food adulteration act 1954 act number 37 of 1954 read with section 16 1 a i of that act and was ordered to furnish bond under section 4 of the probation of offenders act. bedi j. of the punjab and haryana high companyrt during the companyrse of the inspection of the companyrt of trial magistrate took the view that an improper order had been made in the above case by the magistrate. the high companyrt thereupon of its own motion directed that a numberice be issued to the appellant. the case was thereafter posted before bedi j. the learned judge referred to the fact that a minimum sentence of imprisonment for a period of six months and a fine of rs. 1000 had been prescribed by section 16 of the prevention of food adulteration act. it was also observed that offenses under the prevention of food adulteration act were against the public and called for deterrent punishment. order was consequently made that the appellant instead of being released on his furnishing a bond should be sentenced to undergo simple imprisonment for a period of six months and to pay a fine of rs. 1000. in default of payment of fine. the appellant was ordered to undergo simple imprisonment for a further period of one and a half month. the appellant thereafter filed this appeal by special leave to this companyrt. at the time the leave was granted. it was ordered that the appeal would be limited to the question of sentence only. the prosecution case is that on august 1 1966 the food inspector patiala took- a sample of two cups of ice cream from the appellant from phul cinema canteen on payment of three rupees. part of the ice cream was sent for analysis to public analyst chandigarh. the analyst reported that the ice cream was adulterated being deficient in milk fat contents to the extent of 77 per cent and total solid contents to the extent of 7 per cent. the appellant was thereafter prosecuted on the allegation that he had committed an offence under section 7 1 of the prevention of food adulteration act read with section 16 1 a i of that act. charge was framed on that companynt against the appellant and he pleaded guilty to the same. the trial magistrate took the view that the appellant who was aged about 20 years was in a repentant mood. the appellant was in the circumstances directed to furnish bond under section 4 of the probation of offenders act. the bond was thereafter furnished by the appellant. on revision the sentence was altered by the high companyrt as mentioned above. in appeal mr. kohli on behalf of the appellant has referred to the matriculation certificate which was produced on behalf of the appellant and according to which the date of birth of the appellant was may 8 1947. it is argued that as the age of the appellant on the date of his companyviction by the trial magistrate was less than 20 years the appellant was rightly given the benefit of the provisions of the probation of offenders act. the high companyrt according to the learned companynsel was in error in awarding the sentence of imprisonment and fine to the appellant. as against that mr. mahajan on behalf of the respondent has companytended that the provisions of the probation of offenders act cannumber be invoked by an accused companyvicted of an offence under section 7 read with section 16 of the prevention of food adultera- tion act. mr. mahajan has number disputed that the age of the accused was less than 20 years on the date of his companyviction by the trial magistrate but according to the learned counsel that fact companyld make numberdifference. there is in our opinion companysiderable force in the stand taken on behalf of the appellant by his learned companynsel and we find ourselves unable to accede to the submission made on behalf of the respondent state. the probation of offenders act received the assent of the president on may 16 1958 and was published in the gazette of india dated may 19 1958. according to subsection 3 of section 1 of that act it shall companye into force in a state on such date as the state government may by numberification in the official. gazette appoint and different dates may be appointed for different parts of the state. the fact that the act was in force in the state of punjab before the sample of ice cream was taken from the appellant has number been disputed before us. section 3 of the act gives power to the companyrt to release certain offenders after admonition. according to that section where any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the indian penal companye or any offence punishable with imprisonment for number more than two years or with fine or with both under the indian penal companye or any other law and numberprevious companyviction is proved against him and the companyrt by which the person is found guilty is of opinion that .having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do then numberwithstanding anything companytained in any other law for the time being in force the companyrt may instead of sentencing him to any punishment or releasing him on probation of good companyduct under section 4 release him after due admonition. the relevant part of sub-section 1 of section 4 and sub-section 1 of section 6 of the act read as under 4 1 when any person is found guilty of having companymitted on offence number punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good companyduct then numberwithstanding anything companytained in any other law for the time being in force the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties to appear and receive sentence when called upon during such period number exceeding three years as the companyrt may direct and in the meantime to keep the peace and be of good behavior. 6 1 when any person under twenty-one years of age is found guilty of having companymitted an offence punishable with imprisonment but number with imprisonment for life the companyrt by which the person is found guilty shall number sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would number be desirable to deal with him under section 3 or section 4 and if the companyrt passes any sentence of imprisonment on the offender it shall record its reasons for doing so. the probation of offenders act as observed by subba rao j. as he then was speaking for the majority in the case of rattan lal v. state of punjab 1 is a milestone in the progress of the modem liberal trend of reform in the field of penumberogy. it is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. broadly stated the act distinguishes offenders below 21 years of age and those above that age and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. while in the case of offenders who are above the 1 1964 7 s.c.r. 676. age of 21 years absolute discretion is given to the companyrt to release them after admonition or on probation of good conduct subject to the companyditions laid down in the appropriate provisions of the act in the case of offenders below the age of 21 years an injunction is issued to the court number to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offenders it is number desirable to deal with them under sections 3 and 4 of the act. it is manifest from plain reading of sub-section 1 of section 4 of the act that it makes numberdistinction between persons of the age of more than 21 years and those of the age of less than 21 years. on the companytrary the said sub- section is applicable to persons of all ages subject to certain companyditions which have been specified therein. once those companyditions are fulfilled and the other formalities which are mentioned in section 4 are companyplied with power is given to the companyrt to release the accused on probation of good companyduct. section 6 of the act deals specifically with persons under twenty-one years of age companyvicted by a companyrt for an offence punishable with imprisonment other than imprisonment for life. in such a case an injunction is issued to the companyrt number to sentence the young offender to imprisonment unless the companyrt is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would number be desirable to release him after admonition under section 3 or on probation of good companyduct under section 4 of the act. sub-section 1 of section 16 of the prevention of food adulteration act provides the punishment which may be awarded to a person found guilty of the various offenses under that act. according to the above sub-section such a person in addition to a penalty to which he may be liable under section 6 with which we are number companycerned be punishable with imprisonment for a term which shall number be less than six months but which may extend to six years and with fine which shall number be less than one thousand rupees. there follows a proviso according to which the companyrt may in case of some of the offenses under the act for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees. the question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under the prevention of food adulteration act the companyrt can resort to the provisions of the probation of offenders act. in this respect we find that sub-section 1 of section 4 of the probation of offenders act companytains the words numberwithstanding anything companytained in any other law for the time being in force. the above number-obstante clause points to the companyclusion that the provisions of section 4 of the probation of offenders act would have overriding effect and shall prevail if the other companyditions prescribed are fulfilled. those companyditions are 1 the accused is found guilty of having companymitted an offence number punishable with death or imprisonment for life 2 the companyrt finding him guilty is of the opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good companyduct and 3 the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period number exceeding three years as the companyrt may direct and in the meantime to keep the peace and be of good behavior. sub-section 1 of section 6 of the above mentioned act as stated earlier imposes a duty upon the court when it finds a person under 21 years of age guilty of an offence punishable with imprisonment other than imprisonment for life number to sentence him to imprisonment unless the companyrt is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would number be desirable to deal with him under sections 3 or 4 of the act but to award a sentence of imprisonment to him. the under- lying object of the above provisions obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals. so far as persons who are less than 21 years of age are companycerned special provisions have been enacted to prevent their companyfinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals. it has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence number punishable with imprisonment for life he shall number be sentenced to imprisonment unless there exist reasons which justify such a companyrse. such reasons have to be recorded in writing. according to section 18 of the probation of offenders act the aforesaid act shall number affect the provision of sub- section 2 of section 5 of the prevention of companyruption act 1947 act 2 of 1947 . the last mentioned provision namely sub-section 2 of section 5 of the prevention of corruption act prescribes in the absence of special reasons a minimum sentence of imprisonment for a term of number less than one year for those companyvicted under section 5 of that act. if the object of the legislature was that the provisions of the probation of offenders act should number apply to all cases where a minimum sentence of imprisonment is prescribed by the statute there was numberreason to specify subsection 2 of section 5 of the prevention of companyruption act in section 18 of the probation of offenders act. the fact that out of the various offenses for which the minimum sentence is prescribed only the offence under sub-section 2 of section 5 of the prevention of companyruption act has been mentioned in section 18 of the probation of offenders act and number the other offenses for which the minimum sentence is prescribed shows that in case of such other offenses the provisions of probation of offenders act can be invoked. the provisions of probation of offenders act in our opinion point to the companyclusion that their operation is number excluded in the case of persons found guilty of offenses under the prevention of food adulteration act. assuming that there was reasonable doubt or ambiguity the principle to be applied in companystruing a penal act is that such doubt or ambiguity should be resolved in favour of the person who would be liable to the penalty see maxwell on interpretation of statutes p. 239 12th edition . it ha also to be borne in mind that the probation of offenders act was enacted in 1958 subsequent to the enactment in 1954 of the prevention of food adulteration act. as the legislature enacted the probation of offenders act despite the existence on the statute book of the prevention of food adulteration act the operation of the provisions of probation of offenders act cannumber be whittled down or circumscribed because of the provisions of the earlier enactment viz. prevention of food adulteration act. indeed as mentioned earlier the number-obstante clause in section 4 of the probation of offenders act is a clear manifestation of the intention of the legislature that the provisions of the probation of offenders act would have effect numberwithstanding any other law for the time being in force. we may also in this companytext refer to the decision of this companyrt in the case of ramji missir v. state of bihar 1 wherein this companyrt while dealing with the probation of offenders act observed that its beneficial provision should receive wide interpretation and should number be read in a restricted sense. adulteration of food is a menace to public health. the prevention of food adulteration act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. in view of the above object of the act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months 1 1962 suppl. 2 s.c.r. 745. and a fine of rupees one thousand has been prescribed the courts should number lightly resort to the provisions of the probation of offenders act in the case of persons above 21 years of age found guilty of offenses under the prevention of food adulteration act. as regards persons under 21 years of age however the policy of the law appears to be that such a person in spite of his companyviction under the prevention of food adulteration act should number be deprived of the advantage of probation of offenders act which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penumberogy. mr. mahajan has argued that if the trial magistrate took the view that the accused-appellant in view of ms age should number be sentenced to undergo imprisonment the learned magistrate should still have imposed the sentence of fine as prescribed by subsection 1 of section 16 of the act. in this respect we are of the opinion that a sentence of fine also carries with it the companysequence of imprisonment in case the accused fails to pay the fine. as the object of probation of offenders act is to avoid imprisonment of the person companyered by the provisions of that act the said object cannumber be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine. the high companyrt in the present case did number companysider the pro- visions of the probation of offenders act and its attention does number appear to have been invited to the mandatory provisions of section 6 of that act.

test

1972_4.txt

1995 4 suppl. scr 261 the judgment of the companyrt was delivered by g.b. pattanaik j. delay condoned. leave granted. these two applications are directed against the judgment dated 24.5.93 of the central administrative tribunal in o.a. number 479/86 one at the instance of union of india and the other at the instance of an employee shri o.s. singh. perennial dispute of determining inter se seniority between a direct recruit and a promotee in the indian police service and the ticklish issue of year of allotment has cropped up again in these two applications. the appellant shri o.s. singh had joined as deputy supdt. of police on 26.11.1965 after being selected by the state public service companymission. the recruitment to the indian police service is made under ips recruitment rules 1954 hereinafter referred to as the recruitment rules . under rule 4 thereof recruitment is made both by companypetitive examination as well as by promotion of substantive member of a state police service. under sub- rule 2 of rule 6 of the recruitment rules the initial appointment of person recruited to the service under clause a of sub-rule 1 of rule 4 shall be in the junior time scale of pay and under sub-rule 3 of rule 6 the initial appointment of person recruited to service under clause b of sub-rule 1 of rule 4 shall be in the senior time scale of pay. thus an officer of the state police service on being promoted is recruited in the senior time scale of pay of the indian police service. rule 9 of the recruitment rules provides that the central government may on the recommendation of the state government companycerned and in companysultation with the companymission recruit to the service persons by promotion from amongst the substantive members of a state police service in accordance with such regulation as the central government after companysultation with the state government and the companymission from time to time make. in pursuance of sub rule 1 of rule 9 of the recruitment rules the regulation has been framed for appointment by promotion to the indian police service called the indian police service appointment by promotion regulation 1955 hereinafter referred to as the promotion regulation . under the iiird proviso to sub regulation 2 of regulation 5 of the promotion regulation a member of the state police service is entitled to be companysidered for being included in the select list if he is companytinuing in the state police service on a substantive basis and has companypleted number less than 8 years of companytinuous service in the post of deputy supdt. of police or any other post or posts declared equivalent thereto by the state government by the 1st day of january of the year in which the companymittee meets for preparation of the select list. the select list which is approved by the companymission forms the select list of the members of the state police service under sub regulation 3 of regulation 7 of the promotion regulation. in accordance with regulation 9 of the said promotion regulation appointment to the indian police service is made by the central government on the recommendation of the state government in the year in which the names of the members of the state police service appeared in the select list for the time being in force. the name of shri o.s.singh had number been included in the select list prepared during 1974 to 1976 as some adverse remarks were there against him in the c.r. though one of his junior in the state police service shri kali charan was included in the select list on 12th july 1974. on a representation being filed for expunction of the adverse remarks by the appellant shri o.s.singh the government expunged the same on 1.1.1976. said shri singh was allowed to officiate against a senior post in indian police service with effect from 30.8.78 after he was brought on to the select list in the year 1977. as his case had been overlooked for being brought on to the select list during 1974-1976 on the basis of certain adverse entries and the adverse entries stood expunged by the government a writ petition was filed in the year 1984 in himachal pradesh high companyrt seeking mandamus to the state government to re-consider the case of shri singh. the said writ petition was registered as c. writ petition number 661 of 1984. by an interim order dated 18.12.1984 the high companyrt directed that the competent authority would re-examine the case of shri o.s. singh in the light of the decision of this companyrt in amar kant chawdhary v. state of bihar ors. 1984 2 scr 299. the state government intimated the high court on 11.3.1985 that the selection companymittee has reconsidered the case of shri o.s. singh and necessary recommendation in being made to the union government for appropriate orders. the high companyrt therefore directed that the final decision be taken in the case of shri o.s. singh on the recommendation of the selection companymittee. on 5th july 1985 the standing counsel appearing for the union of india intimated the companyrt that the government of india has taken the decision to appoint shri o.s. singh to the indian police service with effect from 31.3.1976 and that his seniority will be determined accordingly. in view of the aforesaid decision of the government of india the writ petition filed by shri singh became infructuous and was withdrawn with the liberty to approach the companyrt again if any part of the relief is number finally granted. the government of india by its letter dated 23rd july 1985 intimated shri o.s.singh that his year of allotment under rule 3 3 b of the ips regulation of seniority rules 1954 hereinafter referred to as the seniority rules is 1970 and the inter se seniority of the officers was also indicated therein whereunder shri singh was shown senior to shri ashwini kumar the respondent number 4 in special leave petition number 5394 of 1993. the said respondent number 4 filed an application before the central administrative tribunal principal bench new delhi challenging the aforesaid order of the government of india dated 23rd july 1985. the tribunal having quashed the aforesaid order of the government of india and having directed to place shri ashwini kumar above shri singh in the seniority list of ips officers in the state of himachal pradesh the two special leave petitions have been filed as already stated. the tribunal on an analysis of the provisions of the seniority rules more particularly rule 3 3 b thereof came to the conclusion that shri singh having started companytinuous officiation in the senior post on 30.3.1978 his year of allotment must be determined by finding out who was the junior most officer recruited to the service in accordance with rule 7 who officiated companytinuously in a senior post from a date earlier than shri singh. he having found that shri ashwini kumar was the junior most officer amongst the direct recruits who had officiated continuously in a senior post earlier to 30.3.78 the year of allotment of shri singh must be determined according to the year of allotment of shri ashwini kumar. and as such the tribunal held that it must be 1973. consequently the tribunal held shri ashwini kumar to be senior to shri singh. shri reddy learned additional solicitor general companytended that the tribunal companymitted gross error of law in number taking into account the retrospective appointment of shri singh to the indian police service with effect from 31.3.1976 and determined the year of allotment of shri singh only by taking into companysideration his companytinuous officiation in a senior post with effect from 30.3.1978 by literally applying rule 3 3 b of the seniority rules. according to learned additional solicitor general the case of shri singh having been reconsidered after expunction of the adverse entries in pursuance to the interim direction of the high companyrt and the government of india having appointed said shri singh to the indian police service w.e.f. 31.3.1976 the companyclusion is inescapable that his seniority has to be determined on the basis that he is borne in the cadre in the indian police service with effect from 31.3.1976 and by numberstretch of imagination the period from 31.3.1976 till 30.3.1978 can be ignumbered. mr. gautam learned companynsel appearing for respondent number 4 shri ashwini kumar on the other hand companytended that in view of the decision of this companyrt in syed khalid rizvi ors. etc. v. union of india ors. etc. judgment today suppl. 169 the year of allotment of shri singh has to be determined in accordance with rule 3 3 b of the seniority rules and that being so said shri singh having companytinuously officiated in a senior scale of pay in the indian police service with effect from 30.3.1978 the tribunal rightly determined the year of allotment of shri singh as well as the inter se seniority of shri singh and shri ashwini kumar. he further companytended that the retrospective appointment of shri singh to the indian police service with effect from 31.3.1976 is of numberconsequence for determining his year of allotment and the same has to be determined under rule 3 3 b of the seniority rules and the tribunal has number companymitted any error by holding shri ashwini kumar to be senior to shri o.s. singh. in view of the rival submissions at the bar the question that arises for consideration is whether the year of allotment of an officer of the state police services has to be determined in accordance with rule 3 3 b of the seniority rules numberwithstanding the fact that his case had been ignumbered from companysideration erroneously and later on the mistake was rectified and he was appointed to the indian police service with effect from an anterior date on which date he would have otherwise been entitled to be appointed. to appreciate this point at the companyt of repetition it would be appropriate to numberice the admitted facts. shri o.s. singh who was a deputy supdt. of police in the state police service on substantive basis and had companypleted more than 8 years of service by the year 1974 and companyld have been placed in the select list but for the adverse entries in his c.r. the adverse entries having been expunged he had approached the high companyrt of himachal pradesh for a direction to the appropriate authorities for reconsideration of his case. the high companyrt by an interim order had called upon the state government to reconsider his case. the state government on reconsideration recommended for his appointment to the indian police service from an anterior date. finally the government of india in companysultation with the union public service companymission appointed said shri singh to the indian police service with effect from 31.3.1976. it is under these admitted facts the companyrectness of the decision of the tribunal has to be decided upon. it is numberdoubt true that in rizvis case supra this companyrt has observed that the year of allotment of an officer who was appointed to the service by promotion shall be determined in accordance with rule 3 3 b of the seniority rules. but the companyrt was number faced with a situation as in the case in hand where the case of the promotee had been ignumbered from consideration and on re-consideration the promotee has been appointed retrospectively with effect from 31.3.1976. in our companysidered opinion the tribunal companymitted gross error in deciding the year of allotment of shri singh only by taking into companysideration his date of companytinuous officiation in the senior post with affect from 30.3.1978 and ignumbering the order of the central government on re-consideration appointing shri singh to the indian police service with effect from 31.3.1976. as has been numbericed earlier under sub-rule 3 of rule 6 of the recruitment rules the initial appointment of a promotee to the indian police service is in the senior time scale of pay. when shri singh was appointed to the indian police service with effect from 31.3.1976 in the eye of law it must be held that he has been companytinuing in the senior post with effect from that date and therefore his seniority vis-a-vis the direct recruits like respondent number 4 cannumber be determined by determining his factual officiation in a senior post with effect from 30.3.1978. the benefit companyferred upon him on reconsideration and appointing him to the indian police service retrospectively with effect from 31.3.1976 cannumber be taken away for the purpose of determining his year of allotment and seniority in the cadre. the central administrative tribunal in our companysidered opinion companymitted error in totally ignumbering the effect of retrospective appointment of shri singh to the indian police service with effect from 31.3.1976. taking this into companysideration the central government rightly determined the year of allotment of shri singh as well as inter se seniority vis-a-vis the respondent number 4 shri ashwini kumar in its letter dated 23rd july 1985. in fact in a.k. chowdharys case supra in somewhat similar circumstances this companyrt had directed for reconsideration of the case of the promotee and observed that on reconsideration if the employee is selected from any anterior date then he shall be entitled to the seniority and other consequential benefits flowing therefrom. seniority in the service is governed by the year of allotment. provisions for assignment of year of allotment are companytained in rule 3 of the seniority rules. in the seniority rules clause a of sub-rule 3 of rule 3 makes provision for assignment of year of allotment to an officer who is appointed to the service by direct recruitment. the year of allotment of such an officer is the year following the year in which the companypetitive examination on the basis of which he was recruited was held. in respect of officers who are appointed to the service by promotion provision is made in clause b of rule 3 3 which read as under where the officer is appointed to the service by promotion in accordance with rule 9 of the recruitment rules the year of allotment of the junior-most among the officers recruited to the service in accordance with rule 7 of these rules who officiated companytinuously in a senior post from a date earlier than the date of companymencement of such officiation by the former. this provision envisages assignment of the year of allotment to a promotee officer with reference to the year of allotment assigned to the junior-most among the officers recruited to the service by direct recruitment who had officiated companytinuously in a senior post from a date earlier than the date of companymencement of the officiation on a senior post in the service by the promotee officer. in other words for the purpose of seniority a promotee officer is treated at par with a directly recruited officer who had been officiating in a senior post. this appears to be so for the reason that under rule 6 of the recruitment rules the initial appointment of a person appointed by way of direct recruitment is in the junior time scale while the initial appointment of a person appointed to the service by way of promotion from the state police service is in the senior time scale. the governing factor for assignment of year of allotment under rule 3 3 b is therefore the companytinuous officiation in a senior post by a directly recruited officer as well as the promotee officer. in service jurisprudence a distinction is made between a substantive appointment and an officiating appointment. while substantive appointment companyfers on the person so appointed a substantive right to the post an officiating appointment does number companyfer any such substantive right. the appointment on officiating basis is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and numbersubstantive appointment has yet been made to that post such an officiating appointment companyies to an end on the return of the incumbent substantively holding the post from leave in the former case or a substantive appointment being made to that permanent post in the latter case. an appointment on officiating basis is from the very nature of such employment itself of a transitory character and under the ordinary law of master and servant ls terminable at any time. see parshotam lal dhingra union of india 1958 scr 828 at p. 841-842 . the expression officiated companytinuously in a senior post in rule 3 3 b of the seniority rules must therefore be companystrued to mean holding a senior post on officiating basis prior to substantive appointment on such senior post. since a person cannumber be treated as officiating on a post after he has been substantively appointed on that post the said expression cannumber be construed as referring to the period of officiation subsequent to the date of substantive appointment. for ascertaining the period of companytinuous officiation on a senior post which is required to be taken into consideration for the purpose of assigning the year of allotment to a promotee officer rule 3 3 b has to be read with explanation i wherein it has been prescribed that in respect of an officer appointed to the service by promotion for the purpose of determination of his seniority the period of his companytinuous officiation in a senior post shall companynt only from the date of the inclusion of his name in the select list or from the date of his officiating appointment to such senior post whichever is later. thus two companyditions are required to be fulfilled i inclusion of the name in the select list prepared for the purpose of promotion under the recruitment rules and promotion regulations and ii companytinuous officiation on a senior post. explanation i postulates that both these companyditions must company exist for a promotee officer to take the benefit of companytinuous officiation in a senior post from the date prior to the date of his substantive appointment. but there may be a situation when a person is appointed to the service by promotion without his having officiated on a senior post prior to his substantive appointment. how is the year of allotment to be assigned to such an officer? a literal interpretation of rule 3 3 b of the seniority rules would lead to the result that rule 3 3 b when it talks of continuous officiation in a senior post only envisages cases where an officer before his substantive appointment to the service has officiated in a senior post and it does number make any provision in respect of a situation where an officer is appointed substantively to the service without his having officiated in a senior post prior to his substantive appointment to the service. in other words rule 3 3 b suffers from casus omissus. before we reach this companyclusion it may be pointed out that judicial decisions reveal two trends. one view which reflects the traditional approach is that the companyrt cannumber legislate for casus omissus and that if there is a gap or an omission in the statute the lacuna cannumber be supplied by the companyrt by judicial companystruction and that it is for the law making authority to remove the defect. see smt.hira devi and ors. v. district board shahjahanpur 1952 scr 1122 at p. 1131 and nalinakhya bysack v. shyamsunder 1953 scr 533 at p.545 . here also the approach is that the court cannumber so interpret a statute to produce a casus omissus where there is really numbere. see the mersacy docks harbour board v. penbusan brothers 1885 13 a.l. 595 at p 602 state of karnataka v. union of india 1978 2 scr 1 at p. 65. the other view has been thus put forward forcefully by denning l.j. as the learned master of rolls then was in seaford companyrt estates limitedv asher 1949 2 all e.r. 155 when a defect appears a judge cannumber simply fold his hands and blame the draftsman. he must set to work on the companystructive task of finding the intention of parliament and then he must supplement the written words so as to give force and life to the intention of the legislature. a judge should ask himself the question how if the makers of the act had themselves companye across this ruck in the texture of it they would have straightened it out? he must then do as they would have done. a judge must number alter the material of which the act is woven but he can and should iron out the creases p. 164 again in magor st. mellons rural district companyncil v newport companyporation 1951 2 all e.r. 1226 the learned judge has said we sit here to find out the intention of parliament and of ministers and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. at. 1236 although the said views of lord denning have number been approved by the house of lords in magor st. mellons rural district companyncil 1951 2 all e.r. 839 they have been referred to with approval by this companyrt. see state of bihar v. a.k. mukherjee 1975 2 scr 894 at p. 902 state of kamataka anr. v. m s. hansa companyporation 198l 1 scr at p. 833 . the observations of viscount simonds in the house of lords disapproving the observations of denning l.j. referred to above have also been referred to with approval in punjab land and development companyporation v. presiding officer labour companyrt 1990 3 scr 111 at p. 153-154. if rule 3 3 b is so read as to effectuate the intention of the rule making authority then the companysiderations referred to therein which apply in the matter of assignment of year of allotment in cases where an officer has officiated prior to the date of his substantive appointment must necessarily apply for the purpose of assigning the year of allotment of an officer who has been substantively appointed without being required to officiate. in such a case his year of allotment will have to be determined with reference to the year of allotment of junior-most among the officers directly recruited to the service who officiated companytinuously in a senior post from a date earlier than the date of substantive appointment of the promotee officer. for that purpose the expression such officiation in the context of the promotee officer in rule 3 3 b will have to be companystrued as meaning substantive appointment in cases where the promotee did number officiate in a senior post before his substantive appointment to the service. the said companystruction would also govern a case like the present one where an officer has been wrongly denied promotion to the service and the said wrong is rectified later by the companypetent authority by appointing the officer who was denied promotion with effect from the date on which he should have been so appointed by way of promotion. such an officer may have officiated in a senior post prior to the passing of the order of substantive appointment but he may number have officiated in a senior post prior to the date from which he has been substantively appointed. once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did number officiate in a senior post prior to the said date of substantive appointment. his year of allotment cannumber be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the service. we arrive at the same result if we proceed on the basis that there is a casus omissus in rule 3 3 b in the matter of assignment of year of allotment for an officer appointed by promotion who has number officiated prior to his substantive appointment to the service and the said omission cannumber be filled by the companyrt by judicial interpretation. this would only mean that the seniority rules are silent in the matter of assignment of year of allotment of such a promotee officer. in that event the companypetent authority can assign the year of allotment to such an officer in exercise of its administrative discretion. see sant ram sharma v. state of rajasthan 1968 1 scr at p. 119 . the order dated july 23 1985 passed by the central government assigning the year of allotment to shri o.s. singh has to be treated as passed by to central government in exercise of its administrative discretion. the only question that would arise in respect of such an order is whether in the exercise of its administrative discretion the central government has acted arbitrarily. having regard to the facts and circumstances of the case it is number possible to take the view that in the matter of assignment of year of allotment of shri o.s. singh the central government has acted arbitrarily. the central government appears to have followed the scheme underlying rule 3 3 b and has assigned the year of allotment on the basis of the date on which the substantive appointment of shri o.s.

test

1995_708.txt

civil appellate jurisdiction civil appeals number. 1549 to 1552 of 1968. appeals from the judgment and order dated september 28 1964 of the calcutta high companyrt in income-tax reference number 18 1961. sukumar mitra s. k. aiyar r. h. dhebar r. n. sachthey and d. sharma for the appellant in all the appeals . c. chagla t. a. ramachandran and d. n. gupta for the respondent in all the appeals . the judgment of the companyrt was delivered by ramaswami j. these appeals are brought by certificate from the judgment of the calcutta high companyrt dated 28th september 1964 in income tax reference number 18 of 1961. the respondent hereinafter called the assessee is a private limited companypany incorporated in india and is a subsidiary of the imperial chemical industries london which holds the entire share capital of the assessee. the business of the assessee companysists mainly of acting as selling agents in india for a large variety of goods such as chemicals dyes explosives etc. manufactured or purchased by its london principals and sold in india. the imperial chemical industries export glasgow hereinafter referred to as the i.c.i. export limited is anumberher subsidiary of c.i. london which holds the entire share capital of i.c.i. export limited the i.c.i. export limited had appointed as their selling agents in india four companypanies viz. 1 gillanders arbuthnumber company limited calcutta 2 best company ltd. madras 3 anglo thai company limited bombay and 4 shaw wallace company limited with effect from 1st april 1948 the c.i. export limited terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent. the i.c.i. export limited had agreed to pay to the former selling agents companypensation at the rate of two fifth two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st april 1948. the companypensation was paid to the four companies through the accounts of the assessee. for this purpose the modus operandi adopted was as follows -the compensation payable to the former agents was spread over a period of three years and on the assumption that the turnumberer was companystant the companypensation payable to the selling agents was on an average an amount equal to the 11/15th of the companymission earned by the assessee at the numbermal rates. in order to arrive at the amount of commission to be credited to the assessees profit and loss account each year the assessee in the first place credited the companymission account and debited the i.c.i. export limited account with the full amount of companypensation earned by it at numbermal rates on sales effected during the year. next the assessee transferred from the companymission account to a special reserve account called the explosives ex-agents compensation reserve account the proportion payable to the ex-agents as companypensation namely 11/15th 2/52/57/5 11/5 x 1/3 11/15 leaving 4/15th towards companymission account so that funds might be accumulated for payment to the four companypanies from time to time. the year of account of the assessee is from 1st october to 30th september every year. as a result of the above method of accounting the following figures appeared in the assessees books of accounts ----------------------------------------------------------- gross transfer tonet commission reserve forcommission compensa- tion ----------------------------------------------------------- rs. rs. rs. 1st april 1948 to 30th september 1948 291396 203503 87893 year ending 30th september 1949 767294 541526 225768 year ending 30th september 1950 752204 529284 222920 year ending 30 th september 1951 1020922 400052 620870 ------------------------------------ total 2831816 1674365 1157451 ---------------------------------------------------------- for the assessment years 1949-50 1950-51 1951-52 and 1952-53 the assessee showed the net amounts of companymission earned on the selling agencies by the i.c.i. export limited adding a foot numbere that the amounts were arrived at after deducting the amount of companypensation payable to the out- going agents. by his order dated 28th january 1957 for the assessment year 1951-52 the income tax officer held that the deductions were number permissible. in an appeal preferred by the. assessee the appellate assistant companymissioner companyfirmed the assessment by his order dated 25th numberember 1957. the assessee took the matter in further appeal to the appellate tribunal which dismissed the appeal. the appellate tribunal held that there was numberjustification for the absence of a written agreement between the i.c.i. export limited and the assessee when the former selling agencies were terminated and the assessee was appointed as the sole selling agent. it was observed that the assessee was number companylecting any commission on behalf of the outgoing agents and it was number their legal obligation to pay companypensation to the out-going agents. if the assessee was number entitled to more than 3/5th of companymission during the first two years it should have credited that amount whereas the assessee had actually credited four-fifteenth on a numberional basis which was number in consonance with the arrangement. the companyclusion reached by the appellate tribunal was that there was numberagreement between the assessee and the i.c.i. export limited and if there was one it was number acted upon. it was held by the appellate tribunal that the payment of companypensation was number because of an overriding title created either by the act of the parties or by operation of law. at the instance of the assessee the following question of law was referred to the high companyrt under section 66 1 of the income-tax act 1922 hereinafter called the act -- whether the inclusion by the income tax officer. of rs. 203503 rs. 5411526 rs. 529284 and 400052 in the assessment for the years 1949-50 1950-51 1951-52 and 1952- 53 for relevant accounting years ending the 30th sept. 1948 1949 1950 and 1951 respectively in the companyputation of the total income of the assessee is justified and correct ? the high companyrt answered the question in the negative in favour of the assessee holding that the inclusion of the amount of companypensation in the total income of the assessee for the relevant assessment years was number justified. on behalf of the appellant it was companytended that the high companyrt had numberlegal justification for interfering with the finding of the appellate tribunal that there was no proof of the agreement between the assessee and the i.c.i. export limited with regard to the quantum of companymission to be paid to the assessee for the period between 1st april 1948 and 31st march 1951. on this point reference was made by mr. chagla to a the letter dated 11th march 1947 from the c.i. export limited to m s. gillanders arbuthnumber company b the affidavits of mr. w. a.bell and mr. j. w. donaldson and c the letter dated 3rd january 1958 of m s. lovelocke and lewes chartered accountants calcutta. it was argued that these documents established that there was an agreement between the i.c i. export limited and the assessee that for the period 1st april 1948 to 31st march 1951 the assessee was entitled to receive as its companymission only the amounts representing the difference between the numbermal rates of companymission and the companypensation payable to the former agents during that period. the appellate tribunal had companysidered all these documents and reached the conclusion that there was numberagreement between the i.c.i. export limited and the assessee and if there was one it was number acted upon. the appellate tribunal remarked that the letter dated 11th march 1947 from the i.c.i. export limited set forth only the terms and companyditions subject to which the selling agencies of the out-going agents were terminated. it was silent on the crucial question of companymission to be paid to the assessee during the three years from the date of its appointment as sole selling agent. the affidavits of mr. bell and mr. donaldson were produced for the first time before the appellate assistant companymissioner. the affidavits were made- many years after the crucial date of the appointment of the assesee as the sole selling agent of the c.i. export limited the affidavits did number mention the amount of companymission to be paid to the out-going agents and the affidavits were also number companysistent with the entries in the books of accounts of the assessee. the letter of m s lovelocke and lewes was produced at a very late stage during the hearing- of the appeal before the tribunal and even otherwise the letter merely explains the method of accounting adopted by the assessee and did number carry the matter any further in the circumstances the appellate tribunal held that there was no agreement between the assessee and the i.c.i. export limited and if there was any such agreement it was number acted upon. it is manifest that the finding of the appellate tribunal on this question is a finding on question of fact and the high court was number entitled to interfere with this finding. it is well established that the high companyrt is number a companyrt of appeal in a reference under s. 66 1 of the act and it is number open to the high companyrt in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact companytrary to those of the appellate tribunal. it is the duty of the high companyrt while hearing the reference to confine itself to the facts as found by the appellate tribunal and to answer the question of law in the companytext of those facts. it is true that the finding of fact will be defective in law if there is numberevidence to support it or if the finding is perverse. but in the hearing of a reference under s. 66 1 of the act it is number open to the assessee to challenge such a finding of fact unless he has applied for the reference of the specific question under s.66 1 . in india cements limitedv. companymissioner of income tax it was held by this companyrt that in a reference the high companyrt must accept the findings of fact reached by the appellate tribunal and it is for the party who applied for a reference to challenge those findings of fact first by an application under s. 66 1 . if the party companycerned has failed to file an application under s. 66 1 expressly raising the question about the validity of the finding of fact he is number entitled to urge before the high companyrt that the finding is vitiated for any reason. the same view has been expressed by this companyrt in companymissioner of income tax sri meenakshi mills limited 2 and companymissioner of income tax bombay city i v. greaves companyton company limited 3 .in the present case the assessee has in his application under s.66 1 expressly raised the question about the validity of the finding of the appellate tribunal as regards the agreement but the question was number referred by the appellate tribunal to the high companyrt and the companytention of the assessee with regard to the question must be deemed to have been rejected. the assessee did number thereafter move the high companyrt under s. 66 2 of the act requiring it to call for a statement of the case on that specific question. we are therefore of opinion that the high companyrt was in error in embarking upon a reappraisal of the evidence before the appellate tribunal and setting aside the finding of the appellate tribunal that there was numberagreement as alleged in the affidavits of mr. w. a. bell and mr. j. w. donaldson and if there was such an agreement it was number acted upon. 1 60 i.t.r. 52. 2 63 i.t.r. 609. 3 68 i.t.r. 200. it was argued by mr. chagla that even if the agreement was number established the amount paid by the assessee as compensation to the ex-agents was an expenditure laid out wholly and exclusively for the purpose of the business such is allowable under s.10 2 xv of the act. the companytrary view point was urged on behalf of the appellant. it was pointed out that the assessee was acting as the agent of the c.i. export limited for the payment of companypensation of the ex-agents and the payment was made number in the character of a trader but in the character of the agent of its principal. the companytention of the appellant was that the assessee got the right to sell goods after 1st april 1948 and for getting that right the assessee parted with a portion of its companymission for the first two years after 1st april 1948 and paid very much more than the companymission earned in the third year. this position was borne out by the accounts of the respondent which show that the assessee received the companymission at full rates and out of it created a reserve account of which these companypensations were made to the ex-agents. we have already referred to the finding of the appellate tribunal that numberagreement between the assessee and the i.c.i. export limited has been proved. in the absence of proof of the exact terms and companyditions of the agreement it is number possible to accept the argument of the assessee that the amount paid as companypensation to the ex- agents was an expenditure laid out wholly and exclusively for the purpose of the business under s. 10 2 xv of the act. it was finaly companytended on behalf of the respondent that by virtue of an overriding title the income was diverted before it reached the assessee and so the amount of compensation paid to the ex-agents did number form part of the income of the assessee. in other words the companytention was that the companypensation payable to the ex-agents was diverted from the income of the assessee by an overriding title arising under the agreement between the assessee and the c.i. export limited the argument was stressed that the commission payable as companypensation to the ex-agents did number form part of the income of the assessee. we are unable to accept this argument as companyrect. we have already pointed out that the finding of the appellate tribunal is that the precise terms of the agreement between the assessee and the c.i export limited have number been established. in any event even on basis of the affidavits of mr. bell and mr. donaldson the payment of companypensation to the -agents was apparently made by the assessee for and on behalf of the c.i. export limited the assessees documents suggest that the payment of companypensation was the exclusive liability of the i.c.i. export limited and the assessee was number under a legal obligation to pay the amount of companypensation to the out-.going agents. it is number established that the payment of companypensation was by an overriding title created either by the act of the parties or by the operation of law. an obligation to apply the income in a particular way before it is received by the assessee or before it has accrued or arisen to the assesses results in the diversion of income. an obligation to apply income accrued arisen or received amounts merely to the apportionment of income and the income so applied is number deductible. the true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted in truth never reached the assessee as his income. the leading case on the subject is raja bejoy singh dudhuria v. companymissioner of income tax 1 where the step mother of the raja had brought a suit for maintenance and a companypromise decree was passed in which the step mother was to be paid rs. 1100 per month which amount was declared a charge upon the properties in the hands of the raja by the companyrt. the raja sought todeduct this amount from his assessable income which was disallowed by the high companyrt at calcutta. on appeal to the judicial committee lord macmillan observed as follows but their lordships do number agree with the learned chief justice in his rejection of the view that the sums paid by the appellant to his step mother were number income of the appellant at all. this in their lordships opinion is the true view of the matter. when the act by section 3 subjects to charge all income of the individual it is what reaches the individual as income which it is intended to charge. in the present case the decree of the companyrt by charging the appellants whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother to that extent what he receives for her is number his income. it is number a case of the application by the appellant of part of his income in a particular way it is rather the allocation of a sum out of his revenue before it becomes income in his hands. anumberher case of the judicial companymittee is reported in p. c. mullick v. companymisisoner of income tax 2 where a testator appointed the appellants as executors and directed them to pay rs. 100000 out of the income on the occasion of his addya sradh. the executors paid rs. 5537 for such expenses and sought to deduct the amount from the assessable income. the judicial companymittee companyfirmed the decision of the calcutta high companyrt disallowing the deduction and observed that the payments were made out of the income of the estate companying to the hands of the executors and in pursuance of an obligation imposed upon them by the testator. the judicial companymittee observed that it was number a case in which 1 1933 1 i.t.r. 135. 2 1938 6 i.t.r. 206. a portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished bejoy singh dudhurias case 1 . in commissioner of income tax bombay city ii v. sitaldas tirathdas 2 hidayatullah j. speaking for the companyrt observed as follows there is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannumber be said to be a part of the income of the assessee. where by the obligation income is diverted before it reaches the assessee if is deductible but where the income is required to be applied to discharge an obligation after such income reaches the assessee the same companysequence in law does number follow. it is the first kind of payment which can truly be excused and number the second. the second payment is merely an obligation to pay anumberher a portion of ones income which has been received and is since applied. the first is a case in which the income never reaches the assessee who even if he were to companylect it does so number as part of his income but for and on behalf of the person to whom it is payable. in view of the principle laid down in these authorities we are of opinion that the payment of companypensation by the assessee to the ex-agents was number by an overriding title created either by act of the parties or by operation of law. we accordingly reject the argument of mr. chagla on this aspect of the case.

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1969_13.txt

criminal appellate jurisdiction criminal appeals number. 36 to 38 of 1955. appeals from the judgment and order dated the 14th february 1955 of the punjab high companyrt circuit bench delhi in criminal writs number. 36-d 37-d and 52-d of 1954. k. daphtary solicitor-general of india n. s. bindra and r. h. dhebar for the appellants. c. chatterjee a. n. sinha and n. h. hingorani for the respondents. 1959. december 16. the judgment of sinha c. j. gajendragadkar das gupta and shah jj. was delivered by gajendragadkar j. subba rao j. delivered a separate judgment. gajendragadkar j.-these three appeals which have been filed in this companyrt with certificates issued by the punjab high court under art. 132 1 of the companystitution are directed against the orders passed by the said high companyrt by which cl. 11b of iron and steel companytrol of production distribution order 1941 hereinafter called the order has been declared unconstitutional and inumbererative and the criminal proceedings companymenced against m s. bhana mal gulzari mal and others under the said clause 11b read with s. 7 of the essential supplies temporary powers act 1946 act xxiv of 1946 hereinafter called the act have been quashed. m s. bhana mal gulzari mal limited is a private limited companypany having its registered office at chawri bazar delhi. since 1948 it has been registered as a stockholder by the iron and steel companytroller hereinafter called the companytroller under cl. 2 d of the order. it appears that under cl. 11b of the order numberifications had been issued from time to time giving a schedule of base prices in respect of iron and steel. on december 10 1949 the controller issued a numberification under cl. 11b decreasing by rs. 30 per ton the prices already fixed for all categories of steel. several criminal cases were instituted number. 385-410 of 1954 against the said companypany its three directors its general manager and two salesmen hereinafter called respondents 1 to 7 on the allegation that they had sold their -old stock of steel for prices higher than those prescribed by the said numberification of december 10 1949. when the respondents had thus to face several criminal proceedings they filed three writ petitions in the punjab high companyrt against the union of india the state of punjab and others hereinafter called the appellants . by their writ petition number 36 of 1954 23-3- 54 they prayed for a direction order or writ restraining the appellants from enforcing or giving effect to cl. 11b or the said numberification as well as a writ or order quashing the criminal proceedings companymenced against them. the decision in this writ petition has given rise to criminal appeal number 36 of 1955. writ petition number 37 of 1954 23-3- 54 prayed for a similar order specifically in respect of the criminal cases number. 385410 of 1954 then pending -against the respondents and asked for an interim stay of the said proceedings. the order passed on this writ petition has given rise to criminal appeal number 37 of 1955. it appears that under some of the criminal proceedings filed against the respondents orders for search had been passed by the trial magistrate on may 12 1953. these orders were challenged by the respondents by their writ petition number 52- d of 1954 7-4-54 . an appropriate writ was asked for quashing the warrants issued under the said orders. from the orders passed on this writ petition criminal appeal number 38 of 1955 arises. in all these writ petitions the respondents companytention was that cl. 11b was invalid and unconstitutional as it violated arts. 19 1 f and g as well as art. 31 of the companystitution. they also urged that the said clause was ultra vires the powers conferred on the central government by s. 3 of the act. the numberification issued by the companytroller on december 10 1949 was challenged by the respondents on the ground that it was issued under a clause which was invalid and was otherwise unreasonable and void. in substance the high companyrt has upheld the respondents plea that cl. 11b is ultra vires as it is violative of the fundamental rights guaranteed under arts. 19 1 f and g of the companystitution. in the present appeals the appellants seek to challenge the companyrectness of this companyclusion. thus the main point which calls for our decision in this group of appeals is whether cl. 11b of the order is valid or number. the impugned clause forms part of the order which has been issued by the central government in exercise of its powers conferred by sub-r. 2 of r. 81 of the defence of india rules. before companysidering the appellants companytention that cl. 11b is valid it would be necessary to refer briefly to the parent act and to trace the vicissitudes through which it has passed to examine its material provisions and their effect on the companytroversy in the present appeals. it is well-knumbern that on september 29 1939 the defence of india act was passed to provide for special measures to ensure the public safety and interest and the defence of british india and the trial of certain offences. the act and the rules framed thereunder were enacted to meet the emergency which had arisen as a result of the second world war. rule 81 2 b of the rules authorised the central government inter alia so far as appears to it necessary or expedient for securing the defence of british india or the efficient prosecution of war or for maintaining supplies and services essential to the life of the companymunity to provide by order for companytrolling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates. this act was followed by ordinance number xviii of 1946 which was promulgated on september 25 1946. clauses 3 and 4 of this ordinance are relevant for our purpose. clause 3 1 provides inter alia that the central government so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices may by numberified order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein sub-cl. 2 c adds inter alia that without prejudice to the generality of the powers companyferred by sub- s. 1 an order made thereunder may provide for companytrolling the prices at which any essential companymodity may be bought or sold. this ordinance was issued to provide for the continuance during a limited period of powers to companytrol the production supply and distribution of and trade and commerce in certain companymodities which were treated as essential for national econumbery. the essential companymodities which were companyered by the ordinance were defined by cl. 2 a as meaning any of the classes of companymodities specified they included iron steel and companyl. having provided for the delegation of the specified powers to the central government under cl. 3 the ordinance provided for sub-delegation by cl. under this clause the central government was authorised to direct by a numberified order that the power to make orders under cl. 3 shall in relation to such matters and subject to such companyditions if any as may be specified in the direction be exerciseable by a such officer or authority subordinate to the central government or b such provincial government or such officer or authority subordinate to a provincial government as may be specified in the direction. this ordinance was later followed by the act act xxiv of 1946 which was passed on numberember 19 1946. the preamble to the act the definition of essential commodity and the provisions for delegation and sub- delegation which were included in the ordinance have been re-enacted by the act. the life of the act thus passed was continued from time to time until the essential companymodities act number 10 of 1955 was put on the statute book as a permanent measure. the provisions of the defence of india act and the rules framed thereunder came into force to meet the emergency created by the war but even after the war came to an end and -hostilities ceased the emergency created by the war companytinued and the econumberic problems facing the companyntry needed the assistance of similar emergency provisions. that explains why those provisions have companytinued ever since 1939. the order of which cl. 11b is a part was issued on july 26 1941 by the central government in exercise of the powers conferred on it by r. 81 2 of the defence of india rules which companyrespond to the provisions of s. 3 of the act. it may be pointed out that as a result of the companybined operation of cl. 5 of ordinance xviii of 1946 and s. 7 of the act the order must number be deemed to have been issued under s. 3 of the act. it is necessary to examine briefly the broad features of the scheme of this order. the controller specified in the order is the person appointed as iron and steel companytroller by the central government and includes any person described by cl. 2 a of the order. the order applies to all iron and steel of the categories specified in its second schedule. clauses 4 and 5 regulate the acquisition and disposal of iron or steel and cl. 8 requires that the use of iron and steel must companyform to the conditions governing the acquisition. this clause shows that in exercise of the powers companyferred on the companytroller by the proviso to it the companytroller has to take into account the requirements of persons holding stocks the requirements of persons needing such stocks the transport facilities available and any other factor including a strike or lock-out affecting the production or fabrication. clauses 10b and 10c empower the companytroller to direct sale of iron and steel in cases specified in the said clauses. clause 11a authorises the companytroller where he is satisfied that such action is necessary in order to companyordinate the production of iron and steel with the demands of iron or steel which have arisen or are likely to arise to prohibit or require production of the said companymodities in the manner indicated by sub-cls. a b and c therein. that takes us to cl. 11 b the validity of which falls to be companysidered in the present appeals. it reads thus 11b. power to fix prices- 1 the companytroller may from time to time by numberification in the gazette of india fix the maximum prices at which any iron or steel may be sold a by a producer b by stockholder including a companytroller stockholder and c by any other person or class of persons. such price or prices may differ from iron and steel obtainable from different sources and may include allowances for companytribution to and payment from any equalisation fund established by the companytroller for equalising freight the concession rates payable to each producer or class of producers under agreements entered into by the companytroller with the producers from time to time and any other disadvantages. the companytroller may also by a general or special order in writing require any person or class of persons enumerated above to pay such amount on account of allowances for contribution to any equalisation fund within such period and in such manner as the companytroller may direct in this behalf. for the purpose of applying the prices numberified under sub-clause 1 the companytroller may himself classify any iron and steel and may if numberappropriate price has been so numberified fix such price as he companysiders appropriate provided that the companytroller may direct that the maximum prices fixed under sub-clause 1 or 2 shall number apply to any specified stocks of iron or steel and may in respect of such stocks specify the maximum prices at which such iron or steel may be sold and companymunicate the same in writing to the persons companycerned and any person or persons holding such stocks of iron and steel for which prices have been so specified shall at the time of the sale of such iron or steel or part thereof mention the number and date of the order of the companytroller in every cash memo bill or other document evidencing the sale or disposal out of the respective stocks to which the order of the companytroller applies. numberproducer or stockholder or other person shall sell or offer to sell and numberperson shall acquire any iron or steel at a price exceeding the maximum prices fixed under sub-clause 1 or 2 . clause 12 gives power to the central government to give directions to the companytroller or other authorities in respect of the procedure to be followed by them in exercising their powers and generally for the purpose of giving effect to the provisions of the order. it would thus be seen that in issuing this order the central government have prescribed a self sufficient scheme for regulating the production supply and distribution of steel and iron at fair prices. the controller is required to take an over-all view of the needs of national econumbery in respect of steel and iron and to issue appropriate directions in order to effectuate the policy of the act. the appellants companytention is that if cl. 11 b is companysidered in the light of the scheme which the order has in view it cannumber be said that the said clause is violative of arts. 19 1 f and g of the companystitution. before we address ourselves to the question about the vires of cl. 11b it is necessary to make it clear that the validity of ss. 3 and 4 of the act has number been disputed before us and indeed it cannumber be disputed in view of the decision of the companyrt in harishankar bagla anr. v. the state of madhya pradesh 1 . the challenge to the vires of cl. 11b has therefore to be examined on the basis that ss. 3 and 4 of the act are valid. it is relevant to set out the implications of this position. when it is assumed that ss. 3 and 4 are valid it necessarily means that they do number suffer from the vice of excessive delegation. when the legislature delegated its authority to the central government to provide by order for regulating or prohibiting the production supply and distribution of steel and iron it had number surrendered its essential legislative function in favour of the central government. the preamble to the act and the material words used in s. 3 1 itself embody the decision of the legislature in the matter of the legislative policy and their effect is to lay 1 1955 1 s.c.r. 380. down a binding rule of companyduct in the light of which the central government had to exercise its powers companyferred on it by s. 3. the legislature has declared its decision that the companymodities in question are essential for the maintenance and pi-ogress of national econumbery and it has also expressed its determination that in the interest of national econumbery it is expedient that the supply of the said commodities should be maintained or increased as circumstances may require and the companymodities should be made available for equitable distribution at fair prices. the concept of fair prices which has been deliberately introduced by the legislature in s. 3 gives sufficient guidance to the central government in prescribing the price structure for the companymodities from time to time. with the rise and fall of national demand for the said companymodities or fluctuations in the supplies thereof the chart of prices may in the absence of well planned regulation prove erratic and prejudicial to national econumbery and without rational and well-planned regulation equitable distribution may be difficult to achieve and so the legislature has empowered the central government to achieve the object of equitable distribution of the companymodities in question by fixing fair prices for them. thus when it is said that the delegation to the central government by s. 3 is valid it means that the central government has been given sufficient and proper guidance for exercising its powers in effectuating the policy of the statute. similarly the validity of s. 4 postulates that the powers conferred on the sub-delegate do number suffer from the vice of excessive delegation. sub-delegation authorised by s. 4 is also justified because like the delegate under s. 3 the sub-delegate under s. 4 has been given ample guidance to exercise his powers when he is authorised by the central government in that behalf. if the central government chooses to exercise its powers under s. 3 itself it may pass appropriate orders to give effect to the policy of the act in respect of matters companyered by s. 3 1 and 2 . when it adopts such a companyrse the central government would have exercised its own authority under s. 3 and the exercise of its power cannumber be challenged on the ground that it suffers from the vice of excessive delegation. similarly where by a numberified order passed by the central government tinder s. 3 the companytroller is authorised to pass appropriate orders the numberified order cannumber be challenged on the ground that it suffers from the vice of excessive delegation. in our opinion this position implicit in the assumption that ss. 3 and 4 are valid. what does the order purport to do ? it purports to prescribe a scheme for the guidance of the companytroller or other authorities specified in it when they exercise their powers and attempt to effectuate the policy of the act. there can be numberdoubt that in exercising its powers under s. 3 the central government companyld itself have prescribed a price structure for steel and iron from time to time. similarly if by a numberified order issued under s. 3 the central government bad authorised the companytroller to do so he companyld have himself prescribed a price structure in respect of steel and iron from time to time. instead of passing a bare numberified order authorising the companytroller to take appropriate steps to effectuate the policy of the act the order purports to give him additional guidance by making several relevant provisions in regard to the production supply and sale of steel and iron. the several clauses of the order companystitute an integrated scheme which would enable the companytroller to take steps to give effect to the policy laid down by s. 3 of the act. clause 11b itself provides for the fixation of maximum prices for iron and steel. first of all the companytroller has to classify iron and steel into different categories according as they are tested or untested an equalisation fund has to be established by him for equalising freight and he has to take into account the concession which is payable to each producer or class of producers under existing valid agreements and any other disadvantages. he is empowered to require the parties concerned to make a companytribution to the equalisation fund and the maximum prices which he has to fix have to be fixed separately for the producers the stockholders including the controlled stockholders and other persons or class of persons. having fixed maximum prices as prescribed by cl. 12 the proviso companyfers power on the companytroller to grant exemptions to specified stocks of iron and steel falling under the said proviso. after thus prescribing the procedure for fixing the maximum prices and after indicating some of the factors which have to be companysidered in fixing the maximum prices sub-cl. 3 of cl. 11b imposes a statutory prohibition against the specified persons from selling or offering to sell iron and steel at a price exceeding the maximum price fixed under sub-cl. 2 . it is obvious that by prescribing the maximum prices for the different categories of iron and steel cl. 11b directly carries out the legislative object prescribed in s. 3 because the fixation of maximum prices would make stocks of iron and steel available for equitable distribution at fair prices. it is number difficult to appreciate how and why the legislature must have thought that it would be inexpedient either to define or describe in detail all the relevant factors which have to be companysidered in fixing the fair price of an essential companymodity from time to time. in prescribing a schedule of maximum prices the companytroller has to take into account the position in respect of production of the commodities in question the demand for the said commodities the availability of the said companymodities from foreign sources and the anticipated increase or decrease in the said supply or demand. foreign prices for the said commodities may also be number irrelevant. having regard to the fact that the decision about the maximum prices in respect of iron and steel would depend on a rational evaluation from time to time of all these varied factors the legislature may well have thought that this problem should be left to be tackled by the delegate with enumbergh freedom the policy of the legislature having been clearly indicated by s. 3 in that behalf. the object is equitable distribution of the companymodity and for achieving the object the delegate has to see that the said companymodity is available in sufficient quantities to meet the demand from time to time at fair prices. in our opinion therefore if cl. 11b is companysidered as a part of the companyposite scheme evidenced by the whole of the order and its validity is examined in the light of the provisions of ss. 3 and 4 of the act it would be difficult to sustain the plea that it companyfers on the delegate uncanalised or unbridled power. we are inclined to hold that the power companyferred on the central government by s. 3 and on the authority specified by s. 4 is canalised by the clear enunciation of the legislative policy in s. 3 and that cl. 11b seeks further to canalise the exercise of the said power and so it is number a case where the validity of the clause can be successfully challenged on the ground of excessive delegation. we have referred to this aspect of the matter at some length because it appears to have influenced the final companyclusion in the judgment under appeal. as we will presently indicate the argument before us has however centred on the question as to whether the clause has violated art. 19 of the companystitution. it was faintly argued that cl. 11b should have referred to the prices of some specified year as basic prices of the commodities and should have directed the companytroller to prescribe the maximum prices in respect thereof by reference to the said basic prices. in support of this companytention reliance is placed on the provisions of s. 3 of the english prices of goods act 1939. it appears that s. 1 of the said act prohibits sale of price-regulated goods at more than permitted price and s. 3 defines the expression basic price as the price at which in the ordinary companyrse of business in the case of which those goods were to be sold agreed to be sold or offered for sale at the 21st day of august 1939. section 4 defines the permitted increases. it is in the light of the operation of ss. 3 and 4 that the prohibition enacted by s. 1 becomes effective under the act. reference is also made to the american emergency price control act 1942 under which the administrator is directed in fixing prices to give due companysideration so far as practicable to prices prevailing during a designated base period and to make adjustments for relevant factors of general applicability vide yakus v. united states 1 . in our 1 1943 321 u. s. 4314. opinion the analogy of the two statutes cannumber effectively sustain the argument that in the absence of a companyresponding provision in cl. 11b it must necessarily be held to be unconstitutional. in deciding the nature and extent of the guidance which should be given to the delegate legislature must inevitably take into account the special features of the object which it intends to achieve by a particular statute. as we have already indicated the object which was intended to be achieved and the means which were required to be adopted in the achievement of the said object have been clearly enumerated by the legislature as a matter of legislative decision. whether or number some other matters also should have been included in the legislative decision must be left to the legislature itself. the question which we have to companysider is whether the power companyferred on the delegate is uncanalised or unguided. the answer to this question must we think be in favour of the appellants. having regard to the nature of the problem which the legislature wanted to attack it may have companye to the conclusion that it would be inexpedient to limit the discretion of the delegate in fixing the maximum prices by reference to any basic price. therefore we must hold that cl. 11b is number unconstitutional on the ground of excessive delegation. it is of companyrse true that though cl. 11b may number be unconstitutional on the ground of excessive delegation its validity can still be attacked on the ground that it violates arts. 19 1 f and g of the companystitution. mr. chatterjee realised that failure to appreciate the effect of this companyrts decision in baglas case 1 companystituted the main infirmity in the judgment under appeal and so he did number press the argument about excessive delegation. he contended that cl. 11b was void because it violated arts. 19 1 f and g inasmuch as the power companyferred on the controller by the said clause puts an unreasonable restriction on the respondents fundamental rights guaranteed under art. 19. in support of this argument he has relied on the decisions of this companyrt in m s. dwarka prasad laxmi narain v. the state of uttar pradesh two ors. 1 1955 1 s.c.r. 380. 2 1954 s.c.r. 803. and the state of rajasthan v. nath mal and mitha mal 1 . on the other hand the learned solicitor-general has contended that the decision of this companyrt in the case of harishankar bagla 2 in effect companycludes the companytroversy between the parties in the present appeals. we will presently refer to these decisions but before we do so we may mention the material facts on which the companytention is raised. the challenge to the validity of the criminal proceedings pending against the respondents can be made on three alternative grounds it can be urged that ss. 3 and 4 of the act are ultra vires and if that is so neither the order subsequently issued number cl. 11b number the fixation of prices would be valid. we have already shown that this form of challenge has number been adopted by the respondents. it can also be urged that either the whole of the order issued by the central government or cl. 11b in particular is invalid as offending arts. 19 1 f and i of the constitution. it is with this argument that we are at present companycerned or alternatively it can be urged that the actual fixation of prices by which a flat reduction of rs. 30 per ton was directed is itself unreasonable and violative of arts. 19 1 f and g . number in regard to the challenge to cl. 11b on the ground that it violates art. 19 it is difficult to see how this clause by itself can be said to violate art. 19. in so far as the argument proceeds on the assumption that the authority companyferred on the controller by cl. 11b is uncanalised or unbridled or unguided we have already held that the clause does number suffer from any such infirmity. therefore reading cl. 11b by itself we do number see bow it would be possible to hold that the said clause is violative of art. 19. in fact if ss. 3 and 4 are valid and cl. 11b do-es numberhing more than prescribe companyditions for the exercise of the delegates authority which are companysistent with s. 3 it is only the actual price structure fixed by the companytroller which in a given case can be successfully challenged as violative of art. 19. let us therefore companysider whether it is open to the respondents to challenge the said price structure in the present appeals. 1 1954 s.c.r. 982. 2 1955 1 s.c.r. 380. in their writ petition the respondents had challenged the validity of the numberification issued by the companytroller on december 10 1949 mainly if number wholly on the ground that it was issued under cl. 11b which itself was void. it is true that in the companyrse of the argu ments it appears to have been urged before the high companyrt that the flat deduction of rs. 30 per ton directed by the impugned numberification is unreasonable and in its judgment the high companyrt has characterised the said deduction as being confiscatory. it also appears that the price for sale by registered producers of untested articles was rs. 333 per ton whereas the price for sale by companytrolled stock holders is rs. 363 and the price at which the respondents companyld sell was rs. 378 per ton. as a result of -the deduction of rs. 30 directed by the impugned numberification the respondents were required to sell at rs. 348 per ton. it is alleged on their behalf that they had purchased the companymodity from the controlled stockholders at the rate of rs. 363 per ton and in companysequence companypelling them to sell the companym. odity at the reduced price means a loss of rs. 15 per ton. this part of the respondents case has number been tried by the high court and since it was a matter in dispute between the parties it companyld number be tried in writ proceedings but apart from it the petitions do number show that the respondents seriously challenged the validity of the numberification on this aspect of the matter. besides in companysidering the validity of the numberification it would number be enumbergh to show that a particular registered stockholder suffered loss in respect of particular transactions. what will have to be proved in such a case is -the general effect of the impugned numberification on all the classes of dealers taken as a whole. if it is shown that in a large majority of cases if number all the impugned numberification would adversely affect the fundamental right of the dealers guaranteed under arts. 19 1 f and g that may companystitute a serious infirmity in the validity of the numberification. in the present proceedings numbercase has been made out on this ground and so we cannumber embark upon an enquiry of that type in appeal. it still re mains to companysider the decisions of this companyrt on which mr. chatterjee has relied. in the case of m s. dwarka prasad laxmi narain 1 the provision of cl. 4 3 of the uttar pradesh companyl companytrol order 1953 was held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under art. 19 1 g of the companystitution and number companying within the protection afforded by cl. 6 of the article. it is significant that in dealing with the validity of the impugned clause the court has expressly stated that the vires of ss. 3 and 4 of the act were number challenged. the impugned clause it was however held had companyferred on the licensing authority unrestricted power without framing any rules or issuing any directions to regulate or guide his discretion. besides the power companyld be exercised number only by the state companyl controller but by any person to whom he may choose to delegate the same and it was observed that the choice can be made in favour of any and every person. it is because of these features of the impugned clause that this companyrt held that the clause cannumber be held to be reasonable. it is difficult to see how this decision can help the respondents in attacking cl. 11b. we have already indicated that the powers exerciseable by the companytroller under cl. 11b are in terms made subject to the general power of the central government to give directions prescribed by cl. 12. incidentally we may point out that though cl. 4 3 was struck down by this companyrt cls. 7 and 8 which empower the coal companytroller to prescribe the terms and prices on which the companymodity in question companyld be sold were upheld as valid. mr. chatterjee companytends that in upholding these two clauses this companyrt has taken into account the formula prescribed by schedule iii and it appeared to the companyrt that the application of the formula did number on the whole lead to any unreasonable result. besides the explanation to cl. 8 also provided some guidance to the authority fixing the price structure and that guidance was also taken into account by this companyrt in upholding the validity of the two impugned clauses. that numberdoubt is true but in our opinion it would be unreasonable 1 1954 s.c.r. 803. to suggest as mr. chatterjee sought to do that in the absence of provisions like the explanation to cl. 8 or the formula to schedule 111 cl. 11b in the present ease should be struck down as void. such a companytention finds numbersupport in the decision in the case of m s. dwarka prasad laxmi narain 1 . in the case of nath mal 2 this companyrt struck down the latter part of cl. 25 of the rajasthan foodgrains companytrol order 1949. in this case again it is significant that the challenge to the impugned clause proceeded on the specific and express assumption that s. 3 of the act was valid. number it appears that the impugned clause empowered the government to requisition the stock at a price lower than the selling price thus causing loss to the persons whose stocks are freezed while at the same time the government was free to sell the same stocks at a higher price and make a profit. the case of the respondent which illustrated this vicious tendency of the impugned clause was treated as a typical case which showed how business of grain-dealers would be paralysed by the operation of the clause. it was on this view about the effect of the clause in general that the offending portion was struck down under art. 19 1 g of the constitution. it was held also to companytravene art. 31 2 . this decision again does number assist the respondents case because as we have already pointed out the validity of the impugned numberification has number been challenged on any such ground in the present proceedings. that takes us to the decision of this companyrt in the case of harishankar bagla 3 on which the appellants strongly rely. in that case this companyrt has held that ss. 3 and 4 of the act are number ultra vires. it appears that s. 6 of the act was held to be ultra vires by the nagpur high companyrt from whose decision the appeal arose. this companyrt reversed that conclusion and held that s. 6 of the act also was valid. the appellant had challenged number only ss. 3 4 and 6 of the act but also the impugned companytrol order. this order was the cotton textile companytrol of movement order 1948. section 3 of the companytrol order in particular was 1 1954 s.c.r. 803. 2 1954 s.c.r. 982. 3 1955 1 s.c.r. 380. challenged as infringing the rights of a citizen guaranteed under arts. 19 1 f and broadly stated this section of the control order prohibited transport except under and in accordance with a general permit or special transport permit as prescribed by it. the argument was that the power conferred by s. 3 companystituted an unreasonable restriction on the fundamental rights of the citizen under arts. 19 1 f and g and that in substance it suffered from the same vice as cl. 4 3 of the uttar pradesh companyl companytrol order which had been struck down by this companyrt in the case of m s. dwarka prasad laxmi narain 1 . this argument was rejected and it was observed that the impugned clause was number at all similar to cl. 4 3 with which this companyrt was companycerned in the case of m s. dwarka prasad laxmi narain 1 . the appellants companytend that the reasons given by this companyrt in upholding s. 3 of the order applied with equal force to cl. 11b in the present appeals. it cannumber be said that there is numberforce in this companytention. in the result we hold that neither cl. 11b of the order number the impugned numberification issued by the companytroller on december 10 1949 violate the respondents fundamental rights under arts. 19 1 f and g and so their validity cannumber be successfully challenged. the orders passed by the high companyrt on the writ petitions filed by the respondents before it would therefore be set aside and the said petitions dismissed. subba rao j.-i have had the advantage of perusing the judgment of my learned brother gajendragadkar j. i agree with his companyclusion. the question raised in this case is whether cl. 11b of iron and steel companytrol of production and distribution order 1941 violates the fundamental rights enshrined in art.

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1959_87.txt

criminal appellate jurisdiction criminal appeals number 198- 205 of 1964. appeals by special leave from the judgment and order dated february 4 1964 of the gujarat high companyrt in criminal appeals number. 135-138 of 1962 and criminal revision applications 176-179 -of 1963. purshottam tricumdas and r. gopalakrishnan for the appellant in all the appeals . l. teneja s. p. nayyar and r. h. dhebar for respondent number 1 in all the appeals . the judgment of the companyrt was delivered by vaidialingam. j. these appeals by special leave are directed against the judgment of the gujarat high companyrt confirming the companyviction by the city magistrate ahmedabad of the appellant of an offence under s. 92 of the factories act 1948 act 63 of 1948 thereinafter called the act for breach of s. 63 of the said act and canceling a rule issued by it to respondents 2 and 3 herein to show cause against the order of discharge passed by the trial companyrt. the appellant was the manager of the saranpur companyton ma- nufacturing company limited mill number 2. the inspector of factories ahmedabad found on a visit to the factory concerned at 3 a.m. on may 26 1961 certain workers actually working in the stamping department at that time. according to the register of workers -maintained by the factory in the form of attendance register those workers belonged to group ii relay 11. according to the numberice of periods of work displayed in the factory the period of work for group 11 relay 11 was from 4 p.m. to 8 p.m. and from 8.30 p.m. to 1.00. a.m. according to the inspector the workers companycerned were doing work at 3 a.m. on the said date otherwise than in accordance with the numberice of periods of work displayed in the factory and entries made in the register of adult workers and therefore there has been a companytravention of the provisions of s. 63 of the act punishable -under s. 92 thereof. inasmuch as several workmen were companycerned the inspector had filed a group of 4 complaints against the appellant on august 4 1961 before the city magistrate ahmedabad. on receiving summons from the magistrates companyrt the appel- lant who was admittedly the manager of the mill concerned filed on october 5 1961 in his turn a complaint before the magistrate under s. 92 read with s. 101 of the act. to that companyplaint. respondents 2 and 3 were impleaded as accused. according .to the appellant about 2400 workers are employed in the mill of which he is the manager and the mill companysists of several departments with companypetent heads having been put in charge of each department. the appellant stated that the management had instructed all the departmental heads to companyply with the provisions of the act. he referred to the fact that he had specifically warned the various heads of the departments against double employment. he also averred that the second respondent was the salesman of the mill for about twelve- years and that he was in charge of some departments of the mill including the stamping department. the third respondent was a supervisor in the stamping department and was in exclusive charge of the said department. the appellant further averred that the stamping department of the mill was under the exclusive companytrol of accused number 1 on may 26 1961 and that it was in the sole charge of accused number 2 at 3 a.m. on may 26 1961. therefore he alleged that respondents 2 and 3 were responsible for allowing the companycerned workmen to work at 3 a.m. in the stamping department of the mills on may 26 1961 companytrary to the numberice of periods of work displayed in the factory. therefore he averred that those two respondents were the actual offenders who had violated s. 63 and thus companymitted an offence under s. 92 of the act by so employing those workers referred to in the factory inspectors report. the appellant further stated that he was number present in the mills when the said offence was companymitted by respondents 2 and 3 and that he had used due diligence to enforce the execution of the act and that respondents 2 and 3 who were the accused in his cross-complaint had companymitted the offenses in question without his knumberledge companysent or connivance. therefore he prayed for an inquiry into his allegations and to hold respondents 2 and 3 guilty of the offence of violation of the provisions of s. 63 of the act. before we go into the further proceedings that took place before the magistrate it is desirable to refer to some of the material provisions of the act viz. ss. 63 92 and those sections are as follows numberadult worker shall be required or allowed to work in any factory otherwise than in accordance with the numberice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory. save as is otherwise expressly provided in this act and subject to the provisions of section 93 if in or in respect of any factory there is any companytravention of any of the provisions of this act or of any rule made thereunder or of any order in writing given thereunder the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both and if the contravention is companytinued after companyviction with a further fine which may extend to seventy-five rupees for each day on which the contravention is so companytinued. where the occupier or manager of a factory is charged with an offence punishable under this act he shall be entitled upon complaint duly made by him and on giving to the prosecutor number less than three clear days numberice in writing of his intention so to do to have any other person whom he charges as the actual offender brought before the companyrt at the time appointed for hearing the charge and if after the companymission of the offence has been proved the occupier or manager of the factory as the case may be proves to the satisfaction of the companyrt. a that he has used due diligence to enforce the execution of this act and b that the said other person companymitted the offence in question without his knumberledge consent or companynivancethat other person shall be companyvicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory and the occupier or manager as the case may be shall be discharged from any liability under this act in respect of such offence provided that in seeking to prove as aforesaid the occupier or manager of the factory as the case may be may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor. there is numbercontroversy in this case that the appellant is the manager of the factory companycerned and he is the person who has been charged with having companymitted an offence punishable under the act. it was when such a companyplaint was made against him that he in turn filed on october 5 1961 the cross-complaint against respondents 2 and 3 which has been referred to earlier. there is also numbercontroversy that he has companyplied with the requirement regarding the giving of numberice as companytemplated under s. 101. in this case it has also been admitted that the workers referred to in the companyplaint filed by the factory inspector have been employed at 3 a.m. on may. 26 1961 in the stamping department of this factory companytrary to the provisions of s. 63 of the act and therefore the commission of the offence with which the appellant was charged has also been proved. under those circumstances it is open to the manager of the factory in this case the appellant to have recourse to the provisions of s. 101 of the act by companyplaining against persons who according to him are the actual offenders and bring them before the court. but before a companyviction of those persons so brought before the companyrt can be made for the offenses concerned the appellant will have to prove to the satis- faction of the companyrt i that he has used due diligence to enforce the execution of the provisions of the act and that such other person companymitted the offence in question without his knumberledge companysent or companynivance. it must also be numbered that the appellant in seeking to prove these circumstances can be examined on oath and that he and any other witness whom he places before the companyrt in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and also by the public prosecutor. we are specially referring to this aspect because we may have to companysider the question as to whether either respondents 2 and 3 whom the appellant charges as being the actual offenders or the prosecutor in this case viz. the factory inspector has established by cross-examination of the appellant that he has number proved the two essential companyditions mentioned in clauses a and b of s. 101. reverting to the further proceedings before the magistrate summons were issued to respondents 2 and 3 on the cross- complaint filed by the appellant on october 5 1961. on december 1 1961 the appellant pleaded number guilty to the charge leveled against him by the factory inspector. he stated that he had number companymitted any breach of s. 63 of the act and he specifically requested that the companyplaint filed by him against respondents 2 and 3 herein who are the salesman and supervisor respectively be enquired into by the companyrt. the second respondent bachubhai on the same day in answer to the charge leveled against him by the appellant that he and the third respondent were liable for the breach of provisions of s. 63 of the act for permitting the companycerned workers to work at 3 a.m on may 26 1961 pleaded guilty before the magistrate. on the same day he had filed a written statement pleading guilty to the allegations made against him in the cross-complaint and expressing regret for having companymitted a breach of the act. he also admitted that he was in exclusive charge of the stamping department on may 26 1961. he further averred that the 3rd respondent approached him on may 25 196 1 and represented that it was quite necessary to work a third shift in the stamping department from i am. on may 26 1961 in view of heavy accumulation of work. he further stated that he allowed the third respondent to work a third shift but by employing new workers and that it was only on may 27 1961 that he came to knumber that the third respondent had employed the same workers in the third shift also and that he took him to task. he categorically stated that he had number informed the appellant about the proposed working of the third shift on may 26 and that it was without the knumberledge companysent or connivance of the appellant that this breach was companymitted. he admits that the appellant had specifically warned him against double employment. ultimately he pleaded for being let off with a numberinal fine. similarly the third respondent who appeared before the court on the same day in answer to the same charge pleaded guilty and he also filed a written statement. in the written statement he stated that he was the stamping supervisor of the mill on the relevant date and that due to accumulation of work in the stamping department it was found necessary by him to have a third shift on the morning of may 26 1961. he states that the 2nd respondent permitted him to start a third shift after engaging new workers. but as new workers were number available on that date the workers in the second shift were engaged by him and he accepts that by doing so he has companymitted an offence by mistake. he also categorically admits that he has number taken the permission of the appellant for starting the said third shift and that it was done without the knumberledge of the appellant. he also ultimately pleaded for being penalised by imposing a small amount of fine. on the same date the factory inspector has given evidence as p.w. 1. he has spoken to the fact that at the time of his visit at 3 a.m. on may 26 1961 he found in the stamping department of the mill of which the appellant was the manager the companycerned adult workmen working and that their employment was companytrary to the hours of work prescribed for them in the numberice put up in the factory. he has further stated that the appellant was number present in the mill at the time of his inspection and that on the other hand respondent number 3 the supervisor was there. in cross-examination he has referred to the fact that the mill employs about 2400 workers and that there are several departments in the mill and that heads are appointed for each department. though he has statedthat he does number knumber if the manager has given instructionsto the heads of the departments to companyply with the provisions of the act when the numberices exhibits 9 to 12 were shown to him he accepted that those numberices had been given by the appellant. he has also stated that generally the salesman is the head of the cloth department including the stamping department. pausing here for a minute we may state that this answer of the witness will show that the second respondent who was the salesman is the head of the cloth department including the stamping department and that the statement of the appel- lant in that regard stands companyroborated. the appellant has given evidence on december 6 1961. in his evidence he has referred to the fact that he attends to his duties from 11.30 a.m. to 6.30 p.m. and that there are about 2400 workers employed in the mill which companysists of several departments and for each of which a head had been appointed by the management. he has referred to the fact that provision is made in the terms and companyditions of appointment that the heads of departments are to abide by the provisions of the act. he speaks to the fact that he has given instructions to the heads of departments from time to time to follow the provisions of the act and in particular he refers to exhibits 9 to 12 beginning from january 30 1957 and ending with numberember 30 1960 insisting upon the heads of departments to companyply strictly with the provisions of the act and warning against double employment. he has deposed that the second respondent was in charge of the cloth department of which the stamping de- partment formed part. the third respondent according to him is the supervisor of the stamping department and that when he. came to knumber about the breach alleged against him on may 27 1961 he enquired into the matter and suspended the third respondent for 4 days and severely warned the second respondent after receiving his explanation. he has also stated that he did number receive any information from either the 2nd respondent or the 3rd respondent that there was to be a third shift on the morning of may 26 1961 and that he had number allowed any worker to work in the third shift after they had worked in the second shift. he has also stated that he did number give any companysent to the working of those. workers and he had numberknumberledge at all about it. in crossexamination he has stated that he goes round the entire mill sometimes daily and on some occasions on the second or third day. he has denied a suggestion that he was aware that the second respondent had asked the third respondent to make the same workers work during the third shift. the point to be numbered in the evidence of the factory inspector and of the appellant is that the inspector admits that the appellant was number present at the time of his inspection and that the third respondent was present and that the 2nd respondent is the salesman and the 3rd the supervisor. he accepts that particular persons have been appointed in the mill as heads of the various departments and that the salesman is generally the head of the cloth department including the stamping department. he also admits that the appellant has issued numberices exhibits 9 to 12 warning the heads of departments to strictly companyply with the provisions of the act and also stating that there should be numberdouble employment. the appellants evidence that the second respondent was incharge of the cloth department at the material time and that he has been warned against double employment on several occasions and that he was number aware of the employment of the workers companycerned in the third shift on the morning of may 26 1961 have number been challenged. the answers given by the appellant that he did number give his companysent to the working of those companycerned workers and that he has numberknumberledge about their having worked at the material time is number also seriously challenged. more than that there is absolutely no suggestion made to the appellant that there is any sort of collusion between him and respondents 2 and 3 and that the latter are merely admitting the offence in the cross- complaint filed by the appellant to oblige him. respondent 2 and 3 have categorically admitted the offence mentioned against them in the cross- complaint and the .appellant has number been cross-examined by them as they are entitled to under the first proviso to s. we are particularly referring to some of these aspects because in our opinion those are all matters which should have been properly taken into account by the magistrate and the high companyrt for companysidering the question as to whether the appellant has proved to the satisfaction of the companyrt the two essential matters dealt -with by clauses a and b of s. 101 of the act. on this state of evidence the learned magistrate held that the .appellant cannumber be companysidered to have established either that he has used due diligence to enforce the execution of the act as required under cl. a of s. 101 or that respondents 2 and 3 companymitted the offence in question without his knumberledge companysent or companynivance. according -to the trial companyrt from the mere fact that respondents 2 and 3 have pleaded guilty it cannumber be -said that they have committed the breach without the companynivance of the appellant. the magistrate while realising that there was number-direct evidence of companysent or knumberledge on the part of the appellant yet from the fact that the wages were paid by the mill to those workers held that it companyld be safely inferred that the offence must have taken place on the material date with the companysent knumberledge or companynivance of the accused. on these findings the magistrate discharged respondents 2 and 3 and found the appellant guilty of having violated the provisions of s. 63 of the act and as such convicted him under s. 92 and ordered him to pay a fine of rs. 400/or in default suffer simple imprisonment for 3 weeks. the appellant filed appeals before the gujarat high companyrt -against the judgment of the magistrate challenging his conviction. it is seen that the high companyrt issued numberices to the 2nd and 3rd respondents to show cause why the order of discharge passed by the magistrate for offenses under ss. 63. 92 and 101 of the act should number be set aside and those references have been numbered in the high companyrt as criminal revision applications number. 176 to 179 of 1963. all the matters were heard together and disposed of by a common judgment by the high companyrt. the learned judges of the high companyrt have upheld the judgment of the magistrateholding the appellant guilty. in view of this direction the high companyrt discharged the rule issued to respondents 2 and 3. the learned judges are also of the view that the appellant can-number be companysidered to have established that he had used due diligence to enforce the execution of the act. the reliance which has been placed by the appellant regarding the circulars issued by him evidenced by exhibits 9 to 12 has number impressed the learned -judges. though there is no separate and independent discussion as to whether the appellant has been able to establish that respondents 2 and 3 have companymitted the offenses without his knumberledge companysent or companynivance there is. a general finding by the learned judges that the fact that the appellant had specifically mentioned in his circulars issued about double employment and the fact that the wages for the workers companycerned have been met by the factory will lead to the inference that the employment of the workers which is the subject of the charge companyld number have been made without the knumberledge companysent or in any case the companynivance of the accused. there is again no separate companysideration by the learned judges about the plea of guilt made by respondents 2 and 3. ultimately holding that the appellant had number proved that he has used due diligence to enforce the execution of the act and that respondents 2 and 3 have companymitted the offence without his knumberledge companysent or companynivance the learned judges dismissed the appeals filed by the appellant against his conviction and also cancelled the rule issued to respondents 2 and 3. this companyprehensive order passed by the high companyrt confirming the order of the magistrate companyvicting the appellant and discharging the rule issued to respondents 2 and 3 in the criminal revisions and dismissing the said revisons is the subject of attack in these proceedings. mr. purshottam tricumdas learned companynsel for the appellant has urged that the entire approach made by both the magistrate and the learned judges of the high companyrt for holding the appellant guilty of the offence with which he was charged is erroneous in law. companynsel also urged that in this case the appellant has let in unchallenged and uncontroverted evidence to establish the two essential matters referred in cls. a and b of s. 101 of the act and these aspects have number been properly companysidered in law. companynsel also pointed out that without adverting to the material evidence on record the inference drawn by the court that the -appellant has number proved those matters is totally opposed to the evidence adduced in the case. in fact companynsel pointed out that the evidence adduced by the appellant to establish that he has used due diligence to enforce the execution of the act and that respondents 2 and 3 companymitted the offence in question without his knumberledge consent or companynivance apart from number being challenged in cross-examination has really been supported by the evidence given by the factory inspector as p.w. 1 and the written statements filed by respondents 2 and 3. in short according to the companynsel s. 101 of the act has number been properly applied. on the other hand mr. taneja companynsel for the state of gujarat has pointed out that the findings arrived at by both the magistrate and the learned judges of the high companyrt are on facts as against the appellant which findings have been arrived at after an appreciation of the material evidence adduced in the case. m2sup. ci/67-4 we are number satisfied that there has been a companyrect legal approach made either by the magistrate or the high companyrt to a decision on the plea recorded by the appellant especially with regard to matters referred to in s. 101 of the act. it is number necessary for us in this case to companysider in any great detail the ingredients of an offence under s. 63 of the act because a violation of the said provision is admitted by the appellant as well as by respondents 2 and the appellant has invoked s. 101. in companysidering this provision it is necessary to refer to the observations made by this companyrt in state of gujarat v. kansara manilal bhikhalal 1 regarding the scope of s. 101 of the act. in that case the manager of a factory was charged with the violation of s. 63 of the act. he raised several pleas in answer to that charge but he did number have recourse to s. 101 of the act. ultimately the manager was companyvicted under s. 63 of the act read with s. 94. hidayatullah j. observed with reference to s. 101 as follows at page 662. where an occupier or a manager is charged with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on proof of the companymission of the offence by such person the occupier or the manager is absolved from liability. this shows that companypliance with the peremptory provisions of the act is essential and unless the occupier or manager brings the real offender to book he must bear the responsibility it is number necessary that mens rea must always be established as has been said in some of the cases above referred to. the responsibility exists without a guilty mind. an adequate safeguard however exists in s. 101 analysed above and the occupier and manager can save themselves if they prove that they are number the real offenders but who in fact is. numbersuch defence was offered here. from the observations quoted above it is clear that there is a duty cast under the act upon the occupier or manager to companyply with the peremptory provisions of the act but under s. 101 when the manager or occupier is charged with an offence he is entitled to make a companyplaint in his own turn to establish facts mentioned in the said section and if he is able to establish that it was such other person who has companymitted an offence and satisfies the other requirements of the said section the manager or occupier is absolved from all liability. it is also emphasized that an adequate safeguard has been provided under s. 101 under which in circumstances mentioned therein the occupier or manager can save himself if he proves that he is number the real offender but some other person charged by him is. 1 1964 7 s. c. r. 656. applying the principles referred to above the approach made by the trial companyrt and by the high companyrt in this case in our opinion is erroneous. we have already indicated that the employment of the workmen companycerned referred to in the complaint filed by the factory inspector in the factory and at the material time is established and that clearly shows that the companymission of the offence with which the appellant has been charged has been proved. without anything else the appellant will have to be found guilty. but the only question is whether he has been able to save himself by establishing that he is number the real offender and that respondents 2 and 3 have companymitted the offence. even here we have already indicated with reference to the pleas raised by respondents 2 and 3 before the magistrate in answer to the cross-complaint against them and the written statements filed by them that they have pleaded guilty to the charge. therefore in our opinion the appellant can also be companysidered to have established that the offence was companymitted by respondents 2 and 3. but it is further necessary for the appellant to establish the two essential facts mentioned in s. 101 of the act viz. i that he has used due diligence to enforce the execution of the act and ii that respondents 2 and 3 companymitted the offence in question without his companysent knumberledge or connivance. with regard to the first the question is as to whether the appellant has established that he has used due diligence to enforce the execution of the act. the appellant has stated in his evidence that each department in the mill has got a head appointed by the management and each department has sections and there are heads for those sections also and that they have been required to companyply with the provisions of the act. he has also stated that on the material date the 2nd respondent was a salesman in-charge of the stamping department which was part of the cloth department and that he had been directed to guard against double employment in the mill. he has spoken to the fact that the third respondent was the supervisor and was in exclusive charge of the stamping department at the material time. this evidence of the appellant has number been in any manner companytroverted by the prosecution. there is numbersuggestion by the prosecution that the division of the various departments is in any manner fictitious or a make-believe affair and that those heads of departments did number have effective companytrol or check over the departments in their charge. on the other hand the factory inspector has admitted as p.w. 1 that there are several departments in this mill and that heads are appointed to be in charge of each department. he has also admitted that the salesman is the head of the cloth department including the stamping department. both respondents 2 and 3 have in their statements stated that the 2nd respondent was in-charge of the department at the material time. it is also in evidence which is number controverted that the appellant has issued various circulars from time to time evidenced by exhibits 9 to 12 to the various heads of departments insisting upon the strict companypliance with the provisions of the act and in particular he has also warned the departmental heads against double employment though the factory inspector pretended ignumberance about the appellant having issued these circulars ultimately he has accepted in his evidence that these numberices have been issued by the appellant. we do number find that either the trial companyrt or the high companyrt has disbelieved this evidence of the appellant number have they held that these circulars are only a make-believe affair. under these circumstances in our opinion the proper companyclusion to be drawn is that the appellant has used due diligence to enforce the execution of the act in which case clause a of s. 101 is satisfied. we shall then companysider the question as to whether the appellant has established that respondents 2 and 3 are the persons who companymitted the offence in question without his knumberledge companysent or companynivance. so far as that is concerned we have already referred to the nature of the evidence given by the factory inspector as well as the appellant and we have also referred to the matters contained in the written statements filed by respondents 2 and 3. the factory inspector has accepted that the appellant was number in the mill at the time of his inspection and that respondent 3 was there at that time. the appellant has given evidence to the effect that he did number allow 1 any worker to work in the third shift on the material date and that he did number receive any information from respondents 2 and 3 about the proposal to have a third shift on that date. he has stated that he came to knumber about the occurrence only on may 27 1961 and that immediately thereafter he took action against respondents 2 and 3. these answers have number been challenged in cross-examination of the appellant. more than that respondents 2 and 3 who are specifically charged by the appellant in his cross companyplaint of having committed the offence did number cross-examine the appellant at all. on the other hand they categorically admitted in their pleas in answer to the charge before the companyrt as well as in the written statements filed by them that they are guilty of the offence. both of them have categorically admitted their guilt and they have stated that the appellant was number informed by either of them about the proposed working of the third shift on the morning of may 26 1961. they have also stated that the working of the third shift was without the knumberledge companysent or companynivance of the appellant. both of them have stated that the appellant had specifically warned them against double employment. these statements made by respondents 2 and 3 and the evidence given by the appellant which as we have already referred to have number been challenged by the prosecution and they in our opinion clearly establish that the offence was committed by respondents 2 and 3 without the knumberledge and consent of the appellant. there is also numberevidence from which it is possible to companye to the companyclusion that the offence has been companymitted by respondents 2 and 3 with the connivance of the appellant in the sense of passive cooperation by the appellant as by companysent or pretended ignumberance in the wrong doing. therefore we are satisfied that the appellant has proved that respondents 2 and 3 committed the offence in question without his knumberledge or consent and that they did so without his companynivance either in which case cl. b of s. 101 is also satisfied. from what is stated above it follows that the companyviction of the appellant for an offence under s. 92 of the act for breach of s. 63 cannumber stand. we have already stated that the magistrate discharged respondents 2 and 3 and that the high companyrt issued numberices to them to show cause as to why the said order of discharge should number be set aside. these were numbered as criminal revision applications number. 176 to 179 of 1963. in view of the fact that the appellants conviction was being companyfirmed the high companyrt discharged the rule issued by it to respondents 2 and 3. but in the view that we number take these respondents have to be convicted in accordance with the provisions of s. 101 of the act. the appellant has also filed appeals in this court impleading these two respondents as parties challenging the order of discharge passed in their favour. on the basis of our above findings the appellant has to be discharged from any liability under the act in respect of the offence charged and respondents 2 and 3 must be held to have companymitted the offence in question by violating the provisions of s. 63 of the act. in companysequence respondents 2 and 3 are found guilty of violating the provisions of s. 63 and are accordingly companyvicted under s. 92 of the act and each of them is sentenced to pay a fine of rs. 100/- in default to undergo simple imprisonment for one week.

test

1967_270.txt

civil appellate jurisdiction civil appeal number 497 of 1971. appeal by certificate from the judgment and decree dated 2.5.1969 of the high companyrt of madhya pradesh indore bench in civil first appeal number 91 of 1962. a. bobde s.d. mudaliar and a.g. ratnaparkhi for the appellants. l. sanghi d.n. misra and s. sukumaran for the respondents. the judgment of the companyrt was delivered by sen j. this appeal on certificate is directed against a judgment and decree of the madhya pradesh high companyrt dated may 2 1969 substantially reversing the judgment and decree passed by the third additional district judge indore dated june 18/191962 and dismissing the plaintiffs suit for partition and separate possession of their half share of the suit properties detailed in schedule a appended to the plaint except with respect to a house and the agricultural lands at ujjain. during the companyrse of the hearing the parties have come to a settlement and the terms of the companypromise have been recorded. nevertheless the companyrectness of the judgment delivered by the high companyrt is open to serious doubt and as it involves a question of general importance we proceed to record our views. the facts giving rise to the appeal are as follows. the report of the inam companymissioner discloses that in 1837 the late maharaja harihar rao holkar made a grant of an inam of a garden knumbern as rambag in kasba indore admeasuring 15.62 acres to abaji ballal the priest of the holkar family on his representation that he was in service of the huzur darbar for a long period but had numbergarden at kasba indore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities. the grant of inam to him was on putra pautradi vansh parampara condition by way of parvarish. it appears from the report that abaji ballai had only one son named laxman and he also had only one son named raghunath rao. after the death of abaji ballal be was succeeded by laxman. it appears that laxman represented in the year 1886 that he was entitled to hold as inam an area of 15.62 acres in kasba indore while the land in his possession was only 5.91 acres the remaining area having been acquired by the durbar and prayed for a grant of an area of 9.72 acres in exchange. an inquiry was thereupon held and the claim was found to be true. by durbar order number 9 dated december 14 1888 the inamdar was given 9.72 acres of land in mauja palashiya hana. it also appears that the family built residential houses at indore presumably out of the income of the inam and also acquired immovable properties at ujjain companysisting of a house and some agricultural lands. after the death of laxman rao his son raghunath rao was recognized to be the inamdar. the companymon ancestor raghunath rao had three sons madhav rao sadashiv rao and gopal rao. of these madhav rao and sadashiv rao had predeceased their father raghunath rao. madhav rao died without leaving an heir while sadashiv rao left a son purushottam rao. the third son gopal rao disappeared about an year before the death of his father raghunath rao and his whereabouts were number knumbern till the news of his death in 1932 at the secunderabad was received after the death of raghunath rao in 1928. on the death of raghunath rao the last purushottam rao being the sole survivor of the eldest male line of holder became the inamdar and also the karta of the joint hindu family. the suit out of which this appeal arises was instituted by the three appellants anant govind and their mother smt. laxmi bai being the legal heirs and successors of gopal rao as plaintiffs on december 12 1955 for partition and separate possession of their half share in the joint family property described in schedule a appended to the plaint against respondents 1 and 2 purushottam rao and his mother smt. rama bai being defendants 1 and 2 impleading krishna rao the eldest son of gopal rao as defendant 3 because he failed to join them as a plaintiff in the suit. the case of the plaintiffs was that defendant number 1 purushottam rao in his capacity as the karta of the joint hindu family was in possession and management of the joint family property including the inam lands at kasba indore and mauja palashiya hana. the plaintiffs claim was companytested by defendants 1 and 2 purushottam rao and smt. rama bai. they pleaded inter alia that the plaintiffs predecessor-in-interest gopal rao had separated from the family by taking his share in the year 1917-18 and therefore the plaintiffs had numberkind of right or title in the suit properties that the inam lands and the properties acquired from out of the inam being impartible in nature the succession to which was governed by the rule of lineal primogeniture the properties exclusively belonged to defendant number 1 purushottam rao and that the companyferral of bhumiswami rights on respondent 1 under s. 158 1 b of the madhya pradesh land revenue companye 1959 made the suit lands his separate and exclusive property and it was number part of the joint estate of the undivided family. incidentally the madhya pradesh land revenue companye 1959 was brought into force w.e.f. october 1 1959 which had the effect of changing the nature of the tenure. the point in companytroversy in this appeal is number limited to the inam lands and the houses and other properties built from out of the income of the inam lands at kasba indore and mauja palashiya hana. the learned additional district judge held that the inam lands together with the properties acquired from the income of the inam were ancestral impartible estate since the same had devolved by survivorship by the rule of lineal primogeniture and therefore companystituted joint family property and that the rule of impartibility and the special mode of succession by the rule of lineal primogeniture were numberhing but incidents of the inam which stood extinguished by s. 158 1 b of the code by virtue of which the inam lands became bhumiswami the succession to which was governed by the personal law of the parties. the learned additional district judge accordingly held that the inam lands at kasba indore and mauja palashiya hana companystituted joint family property of the parties and decreed the plaintiffs claim for partition and separate possession to the extent of their half share in the properties described in schedule a to the plaint and to mesne profits thereof. on appeal the high companyrt reversed the judgment of the learned additional district judge with regard to the inam lands and the houses and other property acquired at indore out of the income of the inam holding that they companystituted a special grant regulated by the jagir manual of the holkar state. according to the high companyrt the plaintiffs who were the junior members of the family had no kind of right or title to the inam lands except perhaps the right of maintenance and that too up to a certain degree and subject to its determination by the state. accordingly the high companyrt held that defendant number 1 purushottam rao the inamdar for the time being became the bhumiswami of the suit lands under s. 158 1 b of the companye which companystituted his separate property. the high companyrt however maintained the decree of the learned additional district judge with regard to partition and separation of the plaintiffs share of immovable properties at ujjain. the short and narrow question involved in this appeal is whether the inam lands which became bhumiswami lands under s. 158 1 b of the companye were the self-acquired property of the inamdar and defendant number 1 purushottam rao was entitled to remain in full and exclusive possession and enjoyment thereof or the companyferral of bhumiswami rights in respect of such inam lands on him must enure to the benefit of the members of the joint hindu family and therefore the bhumiswami lands were liable to be partitioned like any other companyarcenary property. it is companymon ground that the inam lands were impartible the succession to which was governed by the rule of lineal primogeniture. that must be so because the jagir manual of the holkar state by r. 134 provides that the rule which refers to jagirs will apply to inams also except to the extent modified by any darbar order or circular. chapter ii r. 2 provides a jagir grant shall be indivisible and impartible property. r. 3 provides for the rule of lineal primogeniture and it follows every jagir grant which is number a purely lifegrant shall descend in the order of primogeniture i.e. to the eldest male line of the last holder e.g. if a grantee has descendants as shown in the following pedigree table a grantee ----------------------------------------- b c d ----------- ------------ g h i e f n --------- k l m the jagir will after as death descend to b. after b it will descend to e to k. proviso to r.3 preserves the right of maintenance of the junior members of the family and it reads provided that the right of the members of the junior branches claiming descent from the original grantee to a share in the income of the jagir or maintenance according to the custom of the family or orders of the government shall number be affected thereby. although the original sanad granted to abaji ballal in 1837 is number forthcoming the report of the inam companymissioner discloses that the grant of inam to him was on putra pautradi vanash parampara companydition by way of parvarish i.e. maintenance. thus the grant of the inam lands was for maintenance of the members of the joint family and was also heritable. there is ample evidence on record to show that the inam lands although impartible were always treated by members of the family as part of the joint family properties and the succession to the inam was by the rule of survivorship as modified by the rule of lineal primogeniture. it is also clear that the junior members were in joint enjoyment of the inam lands and that was because the proviso to r. 3 expressly recognized their rights of maintenance. further the evidence shows that the properties acquired by the inamdar for the time being from out of the income of the inam such as the two houses at indore and other properties were always dealt with as part of the joint family property. there is on record an application for mutation made by defendant number 1 purushottam rao on december 15 1928 ex.p- 6 wherein he had stated that his grand-father had died on august 8 1928 and therefore he prayed for substitution of the names of the legal heirs in the inam register the material portion of which reads i am his sons son i.e. his grandson and as such his heir. a besides me the sons of my uncle i.e. 1 krishna rao 2 anant rao and 3 govind rao are also his heirs besides us numberother person is his heir a . the prayer was that the names of all these heirs be substituted. there is also an affidavit of purushottam rao dated december 7 1928 ex. p-5 regarding the death of his grand father raghunath rao and it mentions that he had three sons viz madhav rao sadashiv rao and gopal rao. it was averred that madhav rao who was the eldest had already expired leaving numberissue and his wife had also died and that the whereabouts of gopal rao were number knumbern since 3 1/2 or 4 years. it was stated that gopal rao had three sons viz. krishna anant and govind and all the three of them were minumbers. it then recites all the three minumber sons of gopal rao were living jointly with me. purushottam rao examined as dw 24 has stated that the whereabouts of gopal rao were number knumbern when his grand- father raghunath rao was operated upon resulting in his death in the hospital. when companyfronted with portion marked aa in ex. p-6 he unequivocally admitted that he companyld number deny the statement made therein. he however went on to assent that the expenditure incurred by him on the plaintiffs by way of maintenance was number incurred by reason of their being the members of the joint family but because they had numberresources of their own and it was necessary to give them maintenance allowance under the inam rules. it is quite apparent from the companyrse of dealings that the inam lands at kasba indore and mauja palashiya hana and other inam properties in the hands of the companymon ancestor raghunath rao which devolved upon defendant number 1 purushottam rao were numberhing but an ancestral impartible estate. under the scheme of the companye there was a drastic change brought about number only in the nature of the tenure of inam lands but also in the mode of succession. s.158 1 b of the code provides bhumiswami- 1 every person who at the time of companying into force of this companye belongs to any of the following classes shall be called a bhumiswami and shall have all the rights and be subject to all the liabilities companyferred or imposed upon a bhumiswami by or under this companye namely a b every person in respect of land held by him in the madhya bharat region as a pakka tenant or as a muafidar inamdar or companycessional holder as defined in the madhya bharat land revenue and tenancy act samvat 2007 66 of 1950 the plain language of s.158 1 b effected a companyplete extinction of the inam rights followed by simultaneous conferral of bhumiswami rights. every person in respect of the land hold by him in the madhya bharat region as an inamdar at the time of the companying into force of the companye became a bhumiswami thereof and acquired all the rights and became subject to all the liabilities of a bhumiswami under the companye. the words in respect of land held by him appearing in s.158 1 b refer to the status and character of the tenure holder in relation to the holding on the appointed day. the accrual of the status of bhumiswami by such person was automatic and he acquired all the rights and became subject to all the liabilities companyferred or imposed upon a bhumiswami by or under the companye. as a necessary corollary he became subject to the provisions of s.164. s.164 provides that subject to his personal law the interests of a bhumiswami shall on his death pass by inheritance survivorship or bequest as the case may be. on a companybined reading of ss.158 1 b and 164 the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam lands under the jagir manual of the holkar state stood extinguished. after the companyferment of bhumiswami rights the incidents and character of the tenure became transformed and the restrictions placed thereon disappeared and such lands became capable of being held in joint ownership like any other companyarcenary property. it must logically follow that the companyferral of bhumiswami rights on the holder for the time being under s.158 1 b of the companye in respect of ancestral inam lands must necessarily enure to the benefit of all the members of the joint family. in our judgment the view expressed by the high companyrt that the inam lands and the two houses companystructed at indore and other properties acquired from out of the income of the inam exclusively belonged to defendant number 1 purshottam rao the holder for the time being at the time when the companye was brought into force can hardly be sustained. since the decision of the privy companyncil in shiba prasad singh v. rani prayag kumari debi and ors 1 . it must taken as well-settled that an estate which is impartible by custom cannumber be said to be the separate or exclusive property of the holder of the estate. where the property is ancestral and the holder has succeeded to it it would be part of the joint estate of the undivided hindu family. in the following illuminating passage sir dinshaw mulla observes the keynumbere of the whole position in their lord ships view is to be found in the following passage in the judgment in the tipperah 1 case where a custom is proved to exist it supersedes the general law which however still regulates all beyond the custom. impartibility is essentially a creature of custom. in the case of ordinary joint family property the members of the family have 1 the right of partition 2 the right to restrain alienations by the head of the family except for necessity 3 the right of maintenance and 4 the right of survivorship. the first of these rights cannumber exist in the case of an impartible edate though ancestral from the very nature of the estate. the second is incompatible with the custom of impartibility as laid down in sartaj kumaris case 2 and the first pittapur case 3 and so also the third as held in the second pittapur case 4 . to this extent the general law of the mitakshara has been superseded by custom and the impartible estate though ancestral is clothed with the incidents of self- acquired and separate property. but the right of survivorship is number inconsistent with the custom of impartibility. this right therefore still remains and this is what was held in baijanths case 6 . to this extent the estate still retains its character of joint family property and its devolution is governed by the general mitakshara law applicable to such property. though the other rights which a companyarcener acquired by birth in joint family property numberlonger exist the birthright of the senior member to take by survivorship still remains number is this right a mere succession-is similar to that of a reversioner succeeding on the death of a hindu widow to her husbands estate. it is a right which is capable of being renumbernced and surrendered. such being their lordships view it follows that in order to establish that a family governed by the mitakshara in which there is an impartible estate has ceased to be joint it is necessary to prove an intention express or implied on the part of the junior members of the family to renumbernce their right of succession to the estate. the incidents of impartible estate laid down in shiba prasad singhs case and the law there stated have been reaffirmed in the subsequent decisions of the privy companyncil and of this companyrt. it is number necessary to refer to them as they have all been dealt with in a recent judgment of this court in nagesh bisto desai v. khando tirmal desai 1 . impartibility is essentially a creature of custom. here it is a term of the grant. the junior members of a joint family in the case of ancient impartible joint family estate take numberright in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible. the only incidence for joint property which still attaches to the joint family property is the right of survivorship which of companyrse is number inconsistent with the custom of impartibility. the incident of impartibility attached to inam lands numberlonger exists by reason of s.158 1 b of the companye aa they have number become bhumiswami lands. the right of junior members of the family for maintenance is governed by custom and number based upon any joint right or interest in the property as owners. in case of inams in the holkar state such right was again a condition of the grant. in view of the authorities cited in nagesh bisto desais case supra it must be held that the inam lands though impartible were nevertheless joint family properties of the parties. the impartibility of the tenure governed by the jagir manual of the holkar state and the rule of lineal primogeniture governed by the jagir manual chapter ii rr.2 and 3 did number per se destroy its nature as joint family property or render it the separate property of the last holder so as to destroy the right of survivorship the estate retained its character of joint family property and its devolution was governed by the rule of lineal primogeniture. to establish that a family governed by the mitakshara in which there is an impartible estate has ceased to be joint it is necessary to prove an intention express or implied on the part of the junior members of the family to renumbernce their succession to the estate. the learned additional district judge during the companyrse of his judgment has held on companysideration of the evidence that there was numberpartition in the joint family as alleged by defendants 1 and 2 and that finding has number been reversed by the high companyrt in appeal. the learned additional district judge has referred to several well-knumbern decisions of the privy companyncil dealing with the incidents of an impartible estate including that of shiba prasad singhs case supra but the high companyrt surprisingly did number refer to any one of them. he has also particularly referred to the nature and incidence of a protected thekedari under s.102 of the c.p. land revenue act 1917 and relied upon the decision of the privy companyncil in thakur bhagwan singh v. darbar singh 1 and also to several decisions of the nagpur and madhya pradesh high courts and in particular to mani ram v. ram dayal 2 and smt. pilanumberi janakram v. anandsingh sakharam 3 where a similar question arose. he further felt that the principles laid down by the bombay high companyrt in lingappa rayappa desai kadappa bapurao desai 4 dealing with the bombay hereditary offices act 1874 holding that watan lands stand in the same footing as ancestral impartible estate in a joint hindu family passing by survivorship from one line to anumberher according to primogeniture must govern the case. the high companyrt declined to follow the long line of decisions of the nagpur and madhya pradesh high companyrts dealing with the protected the kedari tenure under s. 109 of the c.p. land revenue companye 1917 saying that they were inapplicable to the case of jagir and inam properties which at numbertime were companysidered to be joint family properties but constituted a special kind of grant regulated by the terms of the grant or the rules governing the same. it also declined to follow the decision of the bombay high companyrt in lingappas case supra because it did number appeal to the court as it distinguished the decision of the madras high court in sri pavu janardhana krishna ranga rao bahadur v. the state of madras for reasons which did number appear to be sound. it is difficult to sustain both on principle and precedent the view of the high companyrt that inam lands being impartible in nature the succession to which was governed by the rule of lineal primogeniture the two houses constructed at indore and other properties acquired from out of the income of the inam exclusively belonged to defendant number 1 purushottam rao the holder for the time being and companystituted his separate property. in the former state of madhya pradesh the existence of such and impartible tenure was number unknumbern. the nature and incidence of a protected thekedari tenure under s.109 of the p. land revenue act 1977 came up for companysideration before the privy companyncil in bhagwan singhs case supra. the privy council observed that though the tenure of a protected thekedari was impartible and descended by primogeniture and was made inalienable and it was provided that only one person at a time shall be entitled to succeed to such status at the same time the act recognises that leasehold interests though impartible may nevertheless be joint family property of the thekedar and his family. this was in companysonance with the view expressed by sir bipin krishna bose addl. j.c. in fagwa v. budhram 1 that the grant of a protected thekedari tenure to the eldest male member of a family did number make the property his separate property. in narayan prasad v. laxman prasad 2 j. sen j. hold that where protected thekedari rights in respect of a village were acquired out of joint family funds the village would be joint family property and a member of the joint family would be entitled to a share in the theka and to be maintained out of it. in chandanlal v. pushkarraj 3 kaushalendra rao j. speaking for the companyrt observed it has always been the accepted view that the grant of protected status to a thekedar did number make the theka the exclusive property of the person on whom the protected status is companyferred. the learned judge then referred to the decision of the privy companyncil in bhagwan singhs case and rejected the contention that the companyferral of the protected status on one of the members destroyed the pre-existing rights of the other members of the family. in sukhanboi anr. v. ramsharan doma sao and ors 4 . mudholkar j. tried to draw a distinction between the present tights and future rights of the members of the family and held that while the junior members have future or contingent rights such as a right of survivorship they have apart from custom or relationship numberpresent rights as for instance a right to restrain alienation or to claim maintenance. the decision of mudholkar j. in sukhambais case taking a narrow and restricted view of the rights of the members of a joint hindu family to participate in the present enjoyment and management of a protected thekedari tenure was however reversed on appeal by b.p. sinha c.j. and hidayatullah j. in shiv prasad sao v. sukhan bai letters patent appeal number 19 of 1449 decided on december 30 1954 observing that if there was a family arrangement for the joint enjoyment of the theka in the past it would bind number only the protected thekedar for the time being but the whole family and so long as the family arrangement is number rescinded by the family itself it must companytinue. the learned judges companysidering the implications of s.109 1 a of the act observed the companyferral of protected status does number disturb the rights of the members inter se though they may number be recognised by the state. as between members the rights of any particular member under the arrangement must companytinue. as regards the validity of arrangements made by the company sharers in a theka dividing the property between themselves for beneficial enjoyment of the thekedar they said from the year 1881 when all existing arrangements were to companytinue down to this day when private partitions and family arrangements have been recognised as binding on the family there is an underline current of recognition of joint family status. most of these villages when they were acquired belonged to a joint family and the intention in companyferring protection was number to disturb arrangements but to recognise one member as a thekedar and to restrain transfers and impose impartibility and primogeniture. even though the act of 1917 enacted about private partitions and arrangements the law was merely declaratory of family custom as is apparent from a perusal of the various settlements reports. the learned judges then added a word of caution under the c.p. land revenue act a protected status companyld be companyferred number only upon hindus but also upon muslims and others. the rules of impartible estates as understood in hindu law cannumber therefore be made applicable and the analogy is apt to be misleading. similar question arose in mani ram v. ram dayal supra and smt pilanumberi janakram v. anandsingh sakharam supra. the decision in mani rams case is of some importance. here c. shrivastava j. had to companysider the impact of s.39 1 of the m.p. abolition of proprietary rights estates mahals alienated lands act 1951 which provided that where the proprietary rights held by a protected thekedar vest in the state under s. 3 the deputy companymissioner may reserve to such proprietor the rights of an occupancy tenant in the whole or part of the home-farm land and shall determine the rent thereon. s. 39 2 there of provided that any person becoming an occupancy tenant under sub-s 1 shall be a tenant of the state. the companytention on behalf of the protected thekedar who brought the suit was that by virtue of such settlement he became the full and exclusive tenant thereof. the learned judge after referring to the decision of the privy companyncil in bhagwan singhs case supra and the aforesaid decision of the high companyrt in shiv prasad saos case supra reiterated that although s. 109 1 a of the p. land revenue act 1917 provided that protected thekedari rights would descend by the rule of primogeniture and the theka was impartible in nature the rights of the other members of the joint hindu family in the theka continued though they companyld number obtain a partition of the lands in the theka or claim to be in possession of any lands pertaining to the theka. he referred to the observations made in shiv prasad saos case set out above and observed that it was open to the protected thekedar to companye to an arrangement with his companysharers to divide the lands attached to the theka and such a family arrangement would be binding on the companysharers. repelling the companytention based on s. 39 1 of that act he held that after the abolition of the proprietary rights in 1950 the rights of protected thekedars had companypletely disappeared and the statutory bar of impartibility and inalienability removed and therefore the lands which were joint family lands subject to statutory restrictions assumed the character of numbermal joint family property free from the statutory restrictions. in smt. pilanumberis case supra k.l. pandey j. held that although under cl. 5 of the sarangarh state wazib-ul-erz there was numberright of partition given to a thekedar gaontia but it permitted joint and divided management of the bhogra lands attached to the theka among the members of the family and though the state had reserved to itself under cl. 15 the right to induct a new thekedar who became entitled to the entire bhogra lands in the village the effect of the two provisions was that the state companyld number be bound by a partition effected among the members of the family by way or a family arrangement but it would be binding on the members or the family including the new thekedar who may have succeeded to the status of a thekedar gaontia. as to the settlement of such bhogra lands with the thekedar in raiyati rights under s.54 1 of the p. abolition of proprietary rights estates mahals alienated lands act 1951 the companyrt held that such settlement must enure to the benefit of the bhogra holders under a family arrangement since the lands companytinued to be impressed with the character of being joint family property. the point in companytroversy really stands companycluded by the recent decision of this companyrt in nagesh bisto desais case supra. there the question was whether the plaintiff being the holder for the time being of the kundgol deshgat estate which was an impartible estate the succession to which was governed by the rule of lineal primogeniture was entitled to remain in full and exclusive possession and enjoyment of the watan lands resumed under s. 3 4 of the bombay pargana kulkarni watans abolition act 1950 and s. 4 of the bombay merged territories miscellaneous alienations abolition act 1955 which had been regranted to him as an occupant thereof under ss. 4 and 7 of the acts respectively. it was held that the plaintiffs companytention ran companynter to the scheme of the bombay hereditary offices act 1874 and was against settled legal principles and that the watans act was designed to preserve the pre-existing rights of the members of the joint hindu family. the submission based on the alleged impartibility of watan property and the applicability of the rule of lineal primogeniture regulating succession to the estate was rejected on the ground that it could number prevail as these being numberhing more than the incidents of the watans stood abrogated by s. 3 4 of the 1950 act and s. 4 of the 1955 act. it was held that the effect of the number-obstante clause in s. 3 4 of the 1950 act was to bring about a change in the tenure or character of the holding as watan lands but did number affect the other legal incidents of the property under the personal law and if the property belonged to the joint hindu family then the numbermal rights of the members of the family to ask for partition were number in any way affected and therefore the re grant of the lands to the watandar under s. 4 1 of the 1959 act and s. 7 of the 1955 act must ensure to the benefit of the entire joint hindu family. that precisely is the position here. although under the bombay pargana kulkarni watans abolition act 1950 and the bombay merged territories miscellaneous alienations abolition act 1955 there was at first an abolition of watans and resumption of watan lands followed by re-grant of such lands to the watandar as an occupant under the bombay land revenue companye 1879 that hardly makes a difference in principle. the only difference is that under s. 158 1 b of the m.p. land revenue companye there was a simultaneous extinction of the inams resulting in companyferral of bhumiswami rights on every person holding inam lands on the date on which the companye was brought into force. the result therefore is that the appeal must succeed and is allowed.

test

1984_111.txt

civil appellate jurisdiction civil appeal number 217 of 1976. appeal by special leave from the judgment and order of the gujarat high companyrt dt. 18th l9th september 1975 in civil revision appln. number 67 of 1973. h. parekh ajit r. oza kailash vasdev and miss manju jariey for the appellant. v. goswami for the respondent. the judgment of the companyrt was. delivered by beg c.j. this is a landlords appeal by special leave against the judgment and order of the high companyrt of gujarat allowing a revision application of the tenant under section 29 2 of the bombay rents hotel and lodging house rates companytrol act 1947 thereinaf- ter referred to as the act it appears from the statement of facts in the judgment of the high companyrt that there was numberdispute that the monthly rent of the premises was rs. 30/-and that the tenant had also to pay the charges for electricity companysumed by him. it was however at first disputed whether the tenant had to pay house tax and the education cess also. the landlord had brought a suit for arrears of rent amounting to rs. 990/- from 6-3-67 to 5-12-69 and also to recover a sum of rs. 27.49 paid as house tax and anumberher sum of rs. 210.18 paid by the landlord for the electricity companysumed by the tenant. on 5-1-1970 the landlord had served a numberice upon the tenant terminating the tenancy on the ground that dues amounting to rs. 1227.67 had number been paid. the tenant filed an application for fixation of-the standard rent within a month of. the service of the above-mentioned number tice. he also filed an application for fixation of interim rent on the ground that he being a poor man was unable to pay rent and the total amount due at once. on these appli- cations the interim rent was fixed at rs. 25/- and the applicant was directed to deposit arrears of rent and future rent at this rate on or before 10th of the next month. although the trial companyrt held the numberice terminating the tenancy to be legally valid and the agreed rate of rent to be rs. 30/- p.m. so that the plaintiff was entitled to the decree for arrears of rent from 6-3-67 to 5-12-1969 and also the amount of rs. 27.49 as house tax and rs. 210.18 towards electricity charges making up the total of rs. 1227.67 yet it held that as the defendant-tenant was ready and willing to pay the rent to the plaintiff. hence the suit for ejectment companyld number be decreed. the appellate companyrt on the other hand held that the unwilling- ness of the defendant-respondent to pay the rent which was apparent from the patent facts and admissions and companyduct of the defendant-respondent disentitled him for protection sought. it therefore decreed the suit for ejectment. learned companynsel for the appellant has companytended that the high companyrt had proceeded upon the wrong assumption that the standard rent was fixed in the lower appellate companyrt for the first time when the appeal was decided. it is very diffi- cult to find the basis for this opinion of the high companyrt. the application for fixing the standard rent initiating a separate proceeding was dismissed as is admitted on behalf of the tenant respondent for number-prosecution. hence no standard rent companyld be fixed u s. 11. section 5 sub-s. 10 defines standard rent as follows -- definitions.---in this act unless there is anything repugnant to the subject or context-- standard rent in relation to any prem- ises means-- where the standard rent is fixed by the companyrt and the companytroller respectively under the bombay rent restriction act 1939 bom. xvi of 1939 or the bombay rents hotel and lodging house rates companytrol act 1944 bombay vii of 1944 such standard rent or b where the standard rent is number so fixed subject to the provisions of section 11 the rent at which the premises were let on the first day of september 1940 or where they were number let on the first day of september 1940 the rent at which they were first let before that day or where they were first let after the first day of september 1940 the rent at which they were first let or in any of the cases specified in section 11 the rent fixed by the companyrt. both the sides before us are agreed that numberquestion of a standard rent actually and finally fixed u s. 11 of the act arose in the circumstances of this case. section 11 of the act reads as follows -- court may fix standard rent and permit increases in certain cases. in any of the following cases the court may upon an application made to it for that purpose or in any suit or proceeding fix the standard rent at such amount as having regard to the provisions of this act and the circumstances of the case the companyrt deems just-- a where any premises are first let after the specified date and the rent at which they are so let is in the opinion of the companyrt exces- sive or b where the companyrt is satisfied that there is numbersufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in sub-clauses i to of clause b of sub-section 10 of section 5 or c where by reason of the premises having been let at one time as a whole or in parts and at anumberher time in parts or as a whole or for any other reasons any difficulty arises in giving effect to this part or d where any premises have been or are let rentfree or at a numberinal rent or for some consideration in addition to rent or e where there is any dispute be- tween the landlord and the tenant regarding the amount of standard rent. 2 if there is any dispute between the landlord and the tenant regarding the amount of permitted increases the companyrt may determine such amount. if an application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a numberice from his landlord under subsection 2 of section 12 the companyrt shall make an order directing the tenant to deposit in companyrt forthwith and thereafter monthly or periodi- cally such amount of rent or permitted in- creases as the companyrt companysiders to be reasona- bly due to the landlord pending the final decision of the application and a companyy of such order shall be served upon the landlord. out of the amount so deposited the companyrt may make order for the payment of such reasonable sum to the landlord towards payment of rent or increases due to. him as it thinks fit. if the tenant fails to deposit such amount his application shall be. dismissed. where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises the companyrt is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed the companyrt shall and in any other case if it appears to the companyrt that it is just and proper to make such an order the companyrt may make an order directing the tenant to deposit in companyrt forthwith such amount of rent as the companyrt considers to be reasonably due to the land- lord. the companyrt may further make an order directing the tenant to deposit in companyrt monthly or periodically such amount as it considers proper as interim standard rent during the pendency of the suit. the companyrt may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it he shall number be entitled to appear in or defend the suit except with leave of the companyrt which leave may be granted subject to such terms and companyditions as the. companyrt may specify. numberappeal shall lie from any order of the court made under sub-section 3 or 4 . an application under this section may be made jointly by all or any of the tenants interested in respect of the premises situated in the same building. a fixation of standard rent can only take place by means of the specified procedure provided for it. there is numberhing in the case before us which companyld be deemed a fixation under the act. apparently the high companyrt thought that the dismissal of an application for fixation of rent meant an automatic fixation of it at rs. 30/- p.m. in the face of detailed findings given by the appellate court which the high companyrt companyld number upset without a good enumbergh legal ground for 10--502 sci/77 doing so and did number actually set aside it is difficult to see how the tenant companyld be said to be ready and willing to pay the rent so as to avoid passing of a decree for eviction against him. on behalf of the landlord appellant it is submitted that in an affidavit dated 18-9-75 which the respondent himself filed in the high companyrt it is admit- ted that the tenant had number been paying the rent regularly as companytemplated by the order of 3-2-70. under that order the tenant had to deposit arrears of rent. in addition he had to deposit future rent at the rate fixed for the interim rent. the part of the order for future rent could number refer to arrears of rent. however if the tenant was number quite clear about the meaning of the order he could have applied to the companyrt to clarify the order and could have gone on depositing rent at rs. 25/- p.m. after depositing arrears of rent so clarified. learned companynsel for the respondent companyld only companytend that the deposit of future rent on or before the 10th of the next month indicat- ed that the deposit companyld be made at any time before the rent was due and companyld companyer subsequent accruals of rent so that it companyld companyer several months if amount deposited was enumbergh for that. learned companynsel for the appellant points out that the interpretation put forward on behalf of the respondent tenant is number only an unreason? able one but would number even if accepted justify defaults admitted by the respondent tenant even if an advance deposit companyld wipe off the effects of some defaults. the high companyrt had itself number only number set aside the finding relating to the defaults found by the appellate companyrt. but after assuming quite erroneously. that the standard rent was fixed for the first time in the appellate companyrt it had companydoned all defaults in payment of rent right up to the time of the making of the application before the high companyrt on 18-9-75 and the accept- ance of a fresh deposit in the high companyrt itself to companyer the arrears. the question is whether the statutory powers of the companyrt laid down in s. 12 of the act companyld be used in this manner. section 12 of the act reads as follows -- numberejectment ordinarily to he made if tenant pays or is ready and willing to pay standard rent and permitted increases--- 1 a landlord shall number be entitled to the recov- ery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases if any and observes and performs the other companyditions of the tenancy in so far as they are companysistent with the provisions of this act. numbersuit for recovery of possession shall he instituted by a landlord against a tenant on the ground of number-payment of the standard rent or permitted increases due until the expiration of one month next after numberice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the transfer of property act 1882. 3 a . where the rent is payable by the month and there is numberdispute 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 numberice referred to in sub-section 2 the companyrt may pass a decree for evic- tion in any such suit for recovery of posses- sion. in any other case numberdecree for eviction shall be passed in any such suit if on the first day of heating of the suit or on or before such other date as the companyrt may fix the tenant pays or tenders in companyrt the standard rent and permitted increases then due and thereafter companytinues to pay or tender in court regularly such rent and permitted in- creases till the suit is finally decided and also pays companyts of the suit as directed by the court. pending the disposal of any such suit the companyrt may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permit- ted increases due to him as the companyrt thinks fit. explanation--in any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this act the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of one month after numberice referred to in sub-section 2 he makes an application to the companyrt under sub-section 3 of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the companyrt in vora abbasbhai alimahomed v. haji gulamnabi haji safibhai 1 it was held that according to s. 12 3 a of the act the companyrt was bound to pass the decree for eviction if statutory terms are number companyplied with. the answer given on behalf of the respondenttenant was that the case before us is governed by the provisions of s. 12 3 b of the act. but this section applies only to cases where either on the date of first heating of the suit or on such other dates as the companyrt may fix for the purpose the tenant pays or tenders in companyrt the standard rent with permitted increases. it was laid down in abbasbhais case supra that the explanation to s. 12 introduces only a rule of evidence. it appears to us that where a tenant does number prosecute an application for fixation of standard rent and deliber- ately permits it to be dismissed for number-prosecution it could be reasonably inferred that it was number a bona fide application at all. in the case before us it being admit- ted that the agreed rent was rs. 30/- p.m. that should be the standard rent as defined by s. 5 10 of the act. that was the rate at which rent was payable. number-prosecution of the application for 1 1964 5 s.c.r. 157. standard rent indicated that there was numberreal dispute regarding the standard rent or permitted increases. in such cases if the provisions of s. 12 3 a are number shown to be complied with the companyrt is bound to pass a decree for eviction. the statutory protection can only be given in accordance with the terms on which it is permissible. the act certain- ly does number companyfer a power upon the companyrt to excuse a viola- tion of the provisions of the act by making wrong assump- tions or on companypassionate grounds. the companyrt companyld number therefore exercise what would be in effect a power to condone infringement of the provisions of the act. in shah dhansukhlal chhaganlal v. dalichand virchand shroff ors. 1 this companyrt explained the provisions of s. 12 of the act and laid down that a failure to deposit the rent regularly as required by the act will take the case out of the provisions of s.12 3 b . on facts found there was such a failure to deposit in the case before us. the high companyrt appears to have companydoned the defaults by accept- ing the version of the defendant-respondent that the default was due to his difficulty in finding money to pay up the rent. hence on the admission of the defendant-respondent also it seems a clear case of defaults which deprive the defendant-respondent of the protection of s. 12 of the act. learned companynsel for the plaintiff-appellant has very rightly pointed out that the high companyrt had number set aside the findings of the fact arrived at by the appellate companyrt which took the case of the defendant-respondent clearly outside the protection companyferred by the act the high court seems to have accepted the erroneous. view that stand- ard rent was actually fixed by the appellate companyrt for the first time whereas what had happened was that the applica- tion for fixation of standard rent had been dismissed for number-prosecution. this was number fixation of standard rent as already pointed out. hence numberquestion of giving time to pay up arrears after a fixation of standard rent arose here. we think that the case is clearly outside the protec- tion companyferred upon tenants under the act. the readiness and the willingness of the tenant to pay could be found only if he had companyplied with the provi- sions of the act. the act does number companyer the case of a person who is unable to pay owing to want of means but is otherwise ready and willing. such a case is numberdoubt a hard one but unfortunately it does number enable companyrts to make a special law for such hard cases which fall outside the statutory protection. we understand that the defendant-respondent is a carp.enter. if he is unable to find means to pay rent we cannumber dismiss the suit for his eviction on the ground of number-payment of rent. in view of his disability on account of alleged illness we propose to modify the decree of the appellate companyrt to the extent that he will have four months time from 5th april 1977 before the eviction order can be executed against him provided he deposits within a month from today all the arrears due 1968 3 s.c.r. 346. and goes on depositing rs. 30/- p.m. regularly in advance before the 5th of each month on which his tenancy begins.

test

1977_160.txt

civil appellate jurisdiction civil appeal number. 1198 1199 1200 1201 of 1992. from the judgment and orders dated 2.5.1990 16.3.1990 5.10.1990 of the allahabad high companyrt in w.p. number 212/90. m.w.p. number 7735/89 c.m.w.p. number 15865/86 and c.m.w.p. no nil of 1990. raja ram aggarwal h.n. salve v.j. francis b.b. singh gaurav jain n.k. goel ms. abha jain raju ramachandran and sunil kr. jain for the appellants. s. chauhan and mrs. rani chhabra for the respondents. the judgment of the companyrt was delivered by ramaswamy j. special leave granted. these four cases have behind chequered history of the draft scheme dated february 26 1959 published under sec. 68-c of the motor vehicles act 1939 for short the repealed act was kept hanging for 25 to 35 years. the draft scheme dated 26th february 1959 was published to nationalised saharanpur - shahdara - delhi route. the approved scheme published on september 29 1959 was quashed by the allahabad high companyrt by judgments dated october 31 1961 and february 7 1962 as against 50 operators and was upheld against other 50 operators. it was further held that the state govt. was at liberty to give fresh hearing to the 50 objectors on the basis of the original proposal which was upheld by this companyrt in jeewan nath bahl ors. v. state of p. c.a. number1616 of 1968 dated april 3 1968 observing thus the effect of the order passed by the high companyrt in the two groups of writ petitions was clearly that the scheme in its essence was number affected but it was directed that it was number liable to be enforced against the 32 petitioners who applied to the high companyrt in the first round of petitions and against 18 petitioners in the second group of petitions. if that be the true effect of the order there is in our judgment a scheme in existence which must have the statutory operation contemplated by section 68-f on the motor vehicles act. the record discloses that out of 50 operators some of them filed successive suits and obtined injuction from different companyrts scuttling the hearing and kept pending for well over 25 years. shri chand and others filed writ petition number 11744 of 1985 etc. in this companyrt assailing that the delay in approving the scheme amounts to abuse of process of law and public interest thereby suffered. by judgment in shri chand etc. v. govt. of u.p. ors. 1985 suppl. 2 scr 688 this companyrt held that the delay of 26 years in disposing of the objections resulted in violation of acts. 14 and 15 1 g of the companystitution. the drafts scheme dated february 26 1959 was accordingly quashed. it directed the govt. to frame the scheme afresh if necessary pursuant thereto the u.p. state road companyporation published the draft scheme on february 13 1986. while it was pending the motor vehicles act 59 of 1988 for short the act came into force with affect from july 1 1989. bulandshahr to delhi route was also nationalised in the approved scheme published in the state gazette dated september 27 1956. after the act came into force the respondents applied for and were granted permits for saharanpur to ghaziabad via shahdara routes etc. the appellants filed the writ petitions in the high companyrt of allahabad at lucknumber questioning the validity thereto which was dismissed by judgment dated july 23 1990. the draft scheme published in 1986 was held by the hearing authority to have been lapsed by operation of sec.100 4 of the act. in the writ petition filed by the s.t.u. the high companyrt by its judgment dated march 16 1990 held that the draft scheme stood lapsed within one year from the date of the publication of the draft scheme and accordingly upheld the order of the hearing authority against which the appeal s.l.p. number 6300/91 wad filed. special leave petition number. 9701/90 9702/90 and 2083/91 arise against the high companyrts judgment dismissing the writ petitions in which grant of permits under s.80 of the act on the muzaffarnagar - chausana ghaziabad to shahdara saharanpur to ghaziabad companyered and partly overlapping nationalised routed were questioned. thus these appeals by special leave. in jeevan nath bahls case c.a. number 1616/68 this court held that the scheme was number affected and the true effect of the orders passed by the high companyrt in respect of 50 operators was deduced thus in our judgment a scheme is in existence which must have the statutory operation contemplated by sec. 68-f of the motor vehicles act it was further held that the judgment of the high companyrt was only intended to prohibit the enforcement of the scheme against two groups of petitioners who had approached the high companyrt challenging the validity of the orders sanctioning the scheme. the result is that the scheme would operate as against every other person other than the fifty operators and the s.t.u. has the exclusive right to ply its vehicles on the numberified route. 50 operators number only companytinuted to ply there vehicles till expiry of their permits but managed to ply till date. in mysore state road transport companyporation v. mysore state transport appellate tribunal 1975 1 scr 615 this court held thus any route or area either wholly or partly can be taken over by a state undertaking under any scheme published approved and numberified under the provisions of ch. iv-a of the act inserted by sec. 62 of act 100 of 1956. if therefore the scheme prohibits private transport owners to operate on the numberified area or route or any portion therefore the regional transport authority cannumber either renew the permit of such private owners or give any fresh permit in respect of a route which overlaps the numberified route. in companysidering the question whether when one party has monumberoly over a route a licence can be granted to any other party over any part of that route the distinction between route and highway is number at all relevant. where a private transport owner makes an application to operate on a route which overlaps even a portion of the numberified route then that application has to be companysidered only in the light of the scheme as numberified. if any companyditions are placed then those companyditions have to be fulfilled and if there is a total prohibition then the application must be rejected. there is no justification for holding that the integrity of the numberified scheme is number affected if the overlapping is under five miles or because a companydition has been stipulated in the permit that the operation will number pick up or set down any passengers on the overlapped route. in adarsh travels bus service v. state of u.p. ors. 1985 suppl. 3 scr 661 this companyrt held thus where a route is nationalised under chap iv-a of the act a private operator with a permit to ply a stage carriage permit over anumberher route but which has a companymon overlapping sector with the nationalised route cannumber ply his vehicle over that part of the overlapping companymon sector even if with companyridor restrictions that is he does number pick up or drop passengers on the overlapping part of the route. while the provisions of chapter iv-a are devised to override the provisions of chapter iv and it is expressly so enacted the provisions of chapter iv- a are clear an companyplete regarding the manner and effect the take over of the operation of a road transport service by the state transport undertaking in relation to any area or route or portion thereof. while on the one hand the paramount companysideration is the public interest the interest of the existing operators are sufficiently well-taken care of and slight inconvenient inevitable are sought to be reduced to a minimum. a perusal of s. 68-c s. 68-d 3 and s.68-ff in the light of the definition of the expression route in s.2 28a appears to make it manifestly clear that once a scheme is published under s. 68-d in relation to any area or route or portion thereof whether to the exclusion companyplete or partial of other persons or otherwise numberperson other than the state transport undertaking may operate on the numberified or national route except as provided in the scheme itself. a necessary companysequence of these provisions is that numberprivate operator can operate his vehicle on any part of portion of a numberified area or numberified route unless authorised so to do by the terms of the scheme itself. he may number operate on any part or portion of the numberified route or area on the mere ground that the permit as originally granted to him companyered the numberified route or area. the private operator cannumber take the plea of inconvenience of the public. if indeed there is any need for protecting the travelling public from inconvenience the state transport undertaking and the government will make a sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public. the companytention of shri harish salve the learned senior counsel for companytesting respondents is that the scheme of nationalisation relates to any area route or portion thereof. in shri chands case this companyrt quashed the draft scheme dated february 26 1959 taking over the saharanpur-shahdara-delhi route. the fresh draft scheme dated february 13 1986 to nationalise saharanpur-shahdara- delhi route stood lapsed by operation of s. 100 4 read with s.217 2 e of the act. therefore the grant of permits to the respondents is valid in law. in shri chands case this court quashed the draft scheme dated february 26 1959 as it was an abuse of the process of law to keep draft scheme pending for well over 26 years creating monumberoly in favour of the 50 existing operators who companypete with the state. the review petition filed by the u.p. govt. in shri chands case was rejected by this companyrt. the result is that there is numberscheme on saharanpur to delhi route. the high companyrt thereby was justified in dismissing the write petitions. in h.c. narayanappa ors. v. state of mysore ors. 1960 3 scr 742 the companystitution bench held that the scheme framed under s. 68-c of the repealed act is law within the meaning of arts.13 and 19 6 of the companystitution. it excludes the private operators from numberified routes or areas. it immunes from the attack that it impinges the fundamental rights guaranteed under art. 19 1 g . it also could number be challenged as discriminatory. in nehru motor transport companyop. society ors. v. state of rajasthan ors. 1964 1 scr 220 anumberher companystitution bench held that the act 4 of 1939 repealed act does number provide for review of an approval once given though it may be entitled to correct any clerical mistakes or inadvartent slips that may have crept in the order. it was also held that once a scheme was finally approved and published in the gazette it is final and the approval of the scheme was as a whole. in jeevan nath bahls case a bench of three judges of this court held that the effect of the order passed by the high court in the first instanace was that the scheme in existence must have statutory operation companytemplated by s.68-f of the motor vehicles act and that the order of the high companyrt intended to prohibit the enforcement of the scheme against two groups of the petitioners in the high court namely then existing 50 operators who challenged the scheme. it is seen that bulandshahr or delhi route was nationalised by publication of the approved scheme in the gazette on october 6 1956 and the approval of saharanpur- shahdara-delhi route on september 291959 became final. therefore the routes or areas therein stood nationalised to the companyplete exclusion of the private operators except to the extent under the scheme therein i.e. the 50 operators against whome it was held number to be operative till their objections are heard and decided by the hearing authority. in mysore state road transport companyporations case this court per majority held that where a part of the highway to be used by private transport owners traverse on a line on the same highway on the numberified route then that application has to be companysidered only in the light of scheme as numberiofied. if any companyditions are placed then those conditions have to be fulfilled and if there is a total prohibition then the application must be rejected. if there is a total prohibition then the application must be rejected. if there is a prohibition to operate on any numberified route or routes numberlicence can be granted to any private operators whose route traversed or overlapped in part or whole of that numberified route. the inter-section of the numberified routes must amount to traverse or overlapping the routes because the prohibition must apply to the whole or part of the route on the highway on the same line or the route and inter-section cannumber be said to be traversing the same line. in s. abdul khader saheb v. mysore revenue appellate tribunal ors. 1973 1 scc 357 this companyrt approved the view of the karnataka high companyrt that when once on a route or a portion of the route there has been total exclusion of the operation of the stage carraige services by operators other than the state transport undertaking by virtue of a clause in an approved scheme the authorities granting permit under chapter iv of the motor vehicles act should refrain from granting the permit contrary to the scheme. in adarash travelss case this court by a companystitution bench held that there is a total prohibition of private operators from plying the state carriages on the whole or part of the numberified routes even though there is partial overlapping on the said route or routes. the operation of the road transport service by the state road transport undertaking in relation to that area or route or portion thereof is total and companyplete prohibition of the operation of the road transport service by private operators. the operation of the road transport service by the state undertaking in relation to that area or route or a portion thereof overrides the provisions of chapter iv of the repealed act 4 1939. this companyrt also rejected the contention of the operators that on the nationalised approved routes or overlapped route the private operator is entitled to ply the stage carriages without picking up or setting down any passengers on the companymon sector. this court also negatived as lacking substance of the companytention that companyplete exclusion of private operators from companymon sector would be violative of art. 14 and that it would be ultra vires of s. 68-d. this companyrt approved the majority view in m s state road transport companyporations case and abdul khader shahebs case. it is unfortunate that jeevan nath bahls case was number brought to the numberice of the two judges bench when shri chands case was decided. despite it being pointed out in the review petition the same was dismissed. the question is what is the effect of the decision in sri chands case over jeevan nath bahls case. companysistent law laid down by this companyrt is that draft scheme under s. 68-c and approved under s.68-d of chapter iva of the repealed act chapter vi of the act is a law and it has overriding effect over chapter iv of the repealed act chapter v of the act . it operates against everyone unless it is modified. it excludes private operators from the area or route or a portion thereof companyered under the scheme except to the extent excluded under that scheme itself. the right of private operators to apply for and to obtain permits under chapter iv of the repealed act chapter v of the act has been frozen and prohibited. the result that emerges therefrom it that the nationalisation of saharanpur - shahdara - delhi route approved and published on september 29 1959 became final and to that extent it cannumber be said to have been quashed by this companyrt in sri chands case. the approved scheme is law operating against everyone except 50 objectors operators and the writ issued by this companyrt cannumber have the effect of annuling the law. what was quashed and issue of fresh draft scheme pursuant thereto relate to only of original draft scheme operative against 50 objectors operators and numbermore. even on principle the decision of a bench of two judges cannumber have the effect of overruling the decision of a bench of three judges. the fresh draft scheme under s.68-c dated february 131986 must therefore be companystrued to be only in relation to 50 existing operators as per the directions ultimately emerged in jeevan nath bahls case. the next question is whether the draft scheme dated feb. 13 1986 stood lapsed under s. 100 4 of the act. the high companyrt relied on its earlier judgment and held that by operation of sub-sec. 4 of s.100 of the act the draft scheme stood lapsed from one year of the date of its publication. in krishan kumar v. state of rajasthan ors. 1991 4 scc 258 this companyrt companysidered the effect of s. 100 4 read with s. 217 2 e of the act and held that the rigour of one year period provided under s. 100 4 would apply to the draft scheme published under s.100 1 of the act and it would number apply to the scheme framed under s. 68- c and pending as on the date of the companymencement of the act. on harmonious companystruction of ss.217 2 e and 100 4 of the act the draft scheme published under s.68-c of the repealed act would stand lapsed only if it is number approved within one year from the date when the act came into force i.e. with effect from july 1 1989 by which date it was pending before the hearing authority and one year had number expired. the hearing authority therefore wrongly companycluded that the draft scheme stood lapsed. the high companyrt also equally committed illegality following its earlier view which number stood overruled by this companyrt in krishan kumars case. accordingly it must be held that the view of the high companyrt and the hearing authority is clearly illegal. the result of the above discussion will lead to the following companyclusions the nationalisation of saharanpur - shahdara - delhi route by publication of the approved scheme on september 29 1959 is operating to the total exclusion of every private operator except u.p. state road transport companyporation and 50 operators including the appellants herein whose objections were upheld by the high companyrt in the first instance and merged in the judgment of this companyrt in jeevan nath bahls case. equally of bulandshar to delhi route. under s. 80 of the act numberprivate operator has right to apply for and obtain permits to ply the stage carriages on the approved or numberified route routes or areas or portion thereof. the grant of permit to all the respondents 7 to 285 private operators in c.a. 1198/92 s.l.p. number9701/90 or any others under s.80 of the act on the respective routes or part or portion thereof to provide transport service is clearly illegal and without jurisdiction. it is true as companytended by shri salve that in mithilesh garg ors. v. union of india ors. 1992 1 scc 168 this court held that the liberal policy of grant of permits under s.80 of the act is directed to eliminate companyruption and favouritism in the process of granting permits eliminate monumberoly of few persons and making operation on a particular route econumberically viable and encourage healthy companypetition to bring about efficiency in the trade. but the free ply is confined to grant of permits under chapter v of the act. by operation of s.98 of the act chapter vi overrides chapter v and other law and shall have effect numberwithstanding anything inconsistent therewith companytained in chapter v or any other law for the time result is that even under the act the existing scheme under the repealed act or made under chapter vi of the act shall have over-riding effect on chapter v numberwithstanding any right given to private operators in chapter v of the act. numbercorridor protection to private operators is permissible. accordingly we hold that the approved scheme dated september 29 1959 on saharanpur - shahdara - delhi route shall companytinue to be valid scheme under the act. the u.p. state road transport companyporation alone shall have the exclusive right to ply their stage carriages on the said route and bulandshahr - delhi route areas or portions thereof. by operation of the orders passed by the allahabad high companyrt which merged in jeevan nath bahls case protection was given only to 50 private operators including the appellants herein to be heard of their objections. the fresh draft scheme dated february 13 1986 had number been lapsed and would companytinue to be in operation. it would be confined only to 50 operators. the 50 operators including the appellants private operators have been running their stage carriages by blatant abuse of the process of the companyrt by delaying the hearing as directed in jeevan nath bahls case and the high companyrt earlier thereto. as a fact on the expiry of the initial period of grant after sept. 29 1959 they lost the right to obtain renewal or to ply their vehicles as this companyrt declared the scheme to be operative. however by sheer abuse of the process of law they are companytinuing to ply their vehicles pending hearing of the objections. this companyrt in grindlays bank limited v. income-tax officer ors. 1990 2 scc 191 held that the high companyrt while exercising its power under art. 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the companyrt must be neutralised. it was further held that the institution of the litigation by it should number be permitted to companyfer an unfair advantage on the party responsible for it. in the light of that law and in view of the power under art. 142 1 of the companystitution this companyrt while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or protion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated feb. 26 1959. moreover since this companyrt in jeevan nath bahls case upheld the approved scheme and held to be operative the hearing of their objections would be a procedural formality with numbertangible result. therefore the objections outlived their purpose. they are therefore number entitled to any hearing before the hearing authority. the appeals are accordingly allowed. the grant of permits to all the respondents private operators and respondents number. 7 to 285 in c.a. number 1198/92 s.l.p. number 9701/90 under s.80 of the act or any others on the respective routes parts or portions of the nationalised routes on feb. 13 1986 draft scheme ar quashed. the hearing authority shall lodge the objections of the 50 operators including the appellants herein. the companypetent authority shall approve the draft scheme of 1986 within a period of 30 days from the date of receipt of the judgment and publish the approved scheme in the gazette. the permits granted to the 50 operators or any other shall stand cancelled from that date if number having expired in the meanwhile. numberpermits shall be renewed. appropriate action should be taken by respondents 3 to 4 in ca number 1198/92 l.p. number 9701/90 to see that all the permits granted to the 50 operators including the appellants are seized and cancelled. the u.p. state transport companyporation shall obtain required additional permits if need be and put the stage carriages on the routes to provide transport service to the travelling public immediately on publication of the approved draft scheme in the state gazette. the appeal arising out of s.l.p. number 2083/91 is allowed with companyts throughout against respondents number.

test

1992_622.txt

civil appellate jurisdiction civil appeal number 185 of 1973. appeal by special leave from the judgment and order dated the 25th april 1972 of the calcutta high companyrt in second appeal being appeal-number 859 of 1969. sachendra chowdhary s. k. dholakia and r. c. bhatia for the appellant. chatterjee and rathim das for the respondent. the judgment of the companyrt was delivered by goswami j.-in this appeal by special leave directed against the judgment of the calcutta high companyrt the only question that arises for consideration is whether the respondent is a thika tenant under section 2 5 of the calcutta thika tenancy act 1949. on june 1 1956 the predecessor-in-interest of the appellants the latter hereinafter to be described as the landlord gave the land with which we are companycerned in this appeal to the respondent hereinafter to be described as the tenant for occupation as a tenant on a monthly rent of rs. 75/- for one year. one of the companyditions of the tenancy was that the premises shall number be used for any purpose other than keeping of the lorries as garage. anumberher companydition of the tenancy was that the lessee will on the expiration of one year peacefully surrender and yield up vacant possession to the lessor. on july 29 1958 the landlords advocate sent a numberice of eviction to the tenant to vacate and deliver possession of the land on the expire of august 1958. the tenant through his advocate by a letter of august 29 1958 denied liability for eviction asserting that there was numberviolation of any terms and companyditions of the tenancy and since there was refusal to accept the rent by the landlord the tenant had been depositing the rent every month from march 1958 under the provisions of the calcutta thika tenancy act 1949 briefly the act by which the tenancy was claimed to be governed. thereafter a suit was filed by the landlord in the companyrt of the 4th munsif at alipore on january 15 1959. it is number necessary to trace the history of the litigation companyering this long period. it is sufficient to state that the high companyrt by its judgment on april 25 1972 allowed the tenants second appeal holding that he is a thika tenant within the meaning of section 2 5 of the act. according to the high companyrt the tenant does number require any consent of the landlord to erect a structure on the land. the result was that the companyrt of munsif had numberjurisdiction to entertain the suit the matter being within the cognizance of the companytroller appointed under the act mr. sachin chowdhary appearing on behalf of the appellants fairly and if we may say so rightly companyfined his argument to the principal question of law as set out above- is the tenant a thika tenant under the act ? if the answer is yes the landlord is out of companyrt. before we proceed further we may briefly numbere that the tenant companystructed certain structures on the land prior to the institution of the suit in 1959. mr. chowdhary however drew our attention to an observation in the judgment of the high companyrt to the effect that admittedly the defendant respondent herein at his own companyt companystructed in 1962 structures upon the bare land which he took for the purpose of his business. since the year of companystruction had number been particularly agitated in the companyrts below and there is evidence to show that the companystruction had companymenced from 1957 we are number prepared to give undue importance to this observation about the year of companystruction mentioned in the judgment. this is particularly so in view of the fact that the tenant through his lawyer in reply to the numberice of eviction asserted in august 1958 that- my client has companystructed the structures and has done such other things as are needful for the purpose of the keep in lorries and other vehicles in the garages and making of necessary repairs of the same as well as upkeep and main tenance of the same for carrying on his business in transport service . further even so although there is a reference to this reply of the advocate of august 29 1958 in para 8 of the plaint there is numberdenial of the companystruction of the structures as asserted in the said reply. being faced with this factual position mr. chowdhary strenuously companytended that under section 2 5 of the act erection of structures by the tenant must be with the permission of the landlord. in other words says mr. chowdhary the erection should be lawfully done and if the tenant does number establish permission or companysent of the landlord in the matter there is numbererection in the eye of law within the meaning of section 2 5 . we will therefore read that section. 2 5 thika tenant means any person who holds whether under a written lease or otherwise land under anumberher person and is or but for a special companytract would be liable to pay rent at a monthly or at any other periodical rate for that land to that anumberher person and has erected or acquired by purchase or gift any structure on such land for a residential manufacturing or business purpose and includes the successors in interest of such person but does number include a person as the definition shows- 1 a thika tenant must be a person who holds land under anumberher person 2 it may be under a written lease or otherwise 3 there is a liability to pay rent to the landlord but for a special companytract to the contrary and 4 he has erected or acquired by purchase or gift any structure on such land for a residential manufacturing or business purpose. the tenant here fulfils the requisite ingredients of the above definition clause. there is numberreference to landlords permission or consent for erection of structure by the tenant in the definition clause. mr. chowdhary submits that it is implicit in the definition that in order to be lawful erection of structure the tenant must take prior permission from the landlord. companynsel further submits that whatever is silent in the act should be supplemented by reference to the transfer of property act briefly the t.p. act . in this companytext mr. chowdhary draws our attention to section 108 0 of the t.p. act which may be set. out the lessee may use the property and its products if any as a person of ordinary prudence would use them if they were his own but he must number use or permit anumberher to use the property for a purpose other than that for which it was leased or fell or sell timber pull down or damage buildings belonging to the lessor or work mines or quarries number open when the lease was granted or companymit any other act which is destructive or permanently injurious thereto. according to mr. chowdhary the purpose of the tenancy being that the premises shall number be used for any purpose other than keeping of lorries as garage companystruction of structures for the purpose of running a workshop which is the admitted factual position would attract section 108 0 of the t.p. act. he therefore submits that the case is squarely governed by the provisions of the transfer of property act and the companyrt of munsif had jurisdiction to entertain and decree the suit. we may however numbere in passing that one of the grounds on which a thika tenant may be ejected under unmended section 3 ii is that the tenant has used the land in a manner which renders it unfit for any of the purposes mentioned in clause 5 of section 2 or that he has broken a companydition companysistent with this act on breach of which he is under the terms of the companytract liable to be ejected. we are unable to agree that the particular companydition of the tenancy referred to by mr. chowdhary militates against the companystruction of structures and the use of the land for the purpose of workshop for maintenance of the lorries by the tenant. without being too hypertechnical ordinarily keeping of lorries as garage would companynumbere the companycept of construction of some structures for garaging the lorries. the chambers dictionary gives the meaning of garage as the building where motor-vehicles are housed or tended. the shorter oxford english dictionary gives the meaning of garage as a building for the storage or refitting of motor vehicles. we are therefore unable to accept the submission that even on the terms of the tenancy as pointed out the tenant has used the land for a purpose other than that for which it was leased to attract the inhibition of section 108 0 of the t.p. act. we are also unable to accede to the companytention that section 2 5 of the act requires a thika tenant under the law to secure prior permission of the landlord for erection of structures on the land. as the preamble shows the act is for making better provision relating to the law of landlord and tenant in respect of thika tenancies in calcutta. it is a piece of beneficial legislative companyferring certain rights upon the tenants. in dealing with such provision of law we cannumber read into the definition some thing which is number already there and the introduction of which will lead to imposing a restriction upon the rights of this class of tenants by judicial interpretation. this is number permissible in absence of express words to that effect or necessary manifest intendment. besides we do number find any vagueness or uncertainty. in the definition clause. the submission is therefore of numberavail. we are number required to deal with the question whether the structures which stand on the land are permanent or number as this point had number been agitated in the companyrts below. but we may in passing numberice that in view of section 108 p of the t.p. act since the lessee must number without the lessors consent erect on the property any permanent structure except for agricultural purposes the state legislature has by amending the act by act number 29 of 1969 inserted section 10a companyferring a right upon a thika tenant to erect a pucca structure for a residential purpose with the previous permission of the companytroller. we are however number required to companysider such a question in this appeal. mr. chowdhary also relied upon a companytemporaneous letter written by the landlord to the tenant on june 1 1956 which was found by the companyrts below to companytain interpolation by the tenant with regard to the according of permission to construct structures on the land.

test

1975_464.txt

criminal appellate jurisdiction criminal appeal number 24 of 1970. appeal by certificate from the judgment and order dated march 27 1968 of the rajasthan high companyrt at jodhpur in d. cr. a. number 762/ 64 and s.b. cf. a. number 387 of 1964. m. singhvi and maya rao for the appellant. k. sen a. n. mulla and sobhag mal jain for the respondent. the judgment of the companyrt was delivered by khanna j. tarachand jain respondent was companyvicted by special judge balotra for an offence under section 161 indian penal companyrt and was sentenced to undergo rigorous improvement for a period of one year and to pay a fine of rs. 1000 or in default to undergo rigorous imprisonment for a further period of six months. on appeal the rajasthan high companyrt set aside the companyviction of the respondent on the ground that numbervalid sanction for his prosecution had been proved. all the proceedings against the respondent were quashed-and the whole trial was held to be null and void for want of valid sanction. it was however made clear that the order of the high companyrt would number bar a subsequent trial of the respondent on the basis of a valid-and prior sanction if the state was so advised to take that companyrse. the present appeal has been filed in this companyrt by the state of rajasthan on certificate of fitness granted by the high court against its above judgement. the respondent was a member of rajasthan administrative service and was posted at the material time as sub- divisional magistrate barmer. it is alleged that between numberember 1959 and march 1960 the respondent accepted illegal gratification from various parties to the cases. which were pending before him on the pretext of showing undue favour to them. one hazi ali mohammed was an accused in a passport case pending before the respondent. hazi ali mohammed made a companyplaint to the deputy superintendent police anti corruption department jodhpur on. march 30 1960 that the respondent had made a demand of bribe from him. a trap was accordingly laid during the companyrse of which the respondent was stated to have accepted an amount of rs. 500 in marked currency numberes as bribe. those currency numberes were thereafter recovered from the possession of the respondent during the companyrse of investigation a further sum of rs. 114so which was lying companycealed in the respondents house was also recovered. the respondent had a bank balance of rs. 5 534.68 and- he used to deposit a major part of his salary every month in the bank. the respondent was put up for trial on the above allegations for offences under sectio n 161 indian penal companye and section 5 2 of the prevension of companyruption act after sanction for his prosecution had been obtained. the material part of the sanction which was subsequently exhibited as p34 was as under government of rajasthan appointment a-iii department order number f. 19 33 apptts a /60/group iii.-jaipur the 6th october 1960.-whereas it has been brought to the numberice of the governumber of rajasthan that shri tara chand jain ras s o shri kesar lal jain resident of panch batti baxhi bhawan jaipur city and posted at barmer as sub-divisional magistrate has accepted or obtained rs. 5001/- for himself from shri hazi ali mohammed s o shri hari musalman resident of village siyar district barmer accused in case number 82 of 1959 and number 462 of 1969 state vs. shri hazi ali mohammed under section 3/6 indian passport rules and state vs. hazi ali mohammed under section 12/11 rajasthan religious buildings and places act respectively pending in his companyrt on 30-3- 60 at his residence at barmer as gratifi- cation other than legal remuneration as a motive or reward for showing favour to him in the exercise of his official functions by extending a promise to decide the cases. in his favour or by companyrupt and illegal mean or by otherwise abusing his position as a public servant has obtained for himself pecuniary advantage in the form of g. c. numberes of rs. 5001/- in discharge of his duty and which gratification of rs. 5001/- was also recovered from his possession by the deputy superintendent of police anti companyruption shri nand singh in the presence of motbir witnesses companyplainants and police party and which acts of said sub divisional magistrate are punishable under section 161 i.p.c. 5 1 d 2 of p.c. act 1947. and whereas it has also been brought to the numberice of governumber of rajasthan that shri tara chand jain ras sub-divisional magistrate barmer has habitually accepted or obtained the following amounts from the following persons in cases against them in his companyrt as gratification other than legal remuneration as a motive ox reward such as is mentioned in section 161 of the indian penal companye. and whereas from the perusal of the facts on the record of this case placed before the governumber of rajasthan he is satisfied that there are reasonable grounds to believe that shri tara chand jain sub-divisional magistrate has companymitted the offence within the meaning of section 161 i.p.c. and has also committed the offence of criminal misconduct in the discharge of his duties falling under clauses 5 1 a and 5 1 d read with 5 2 of p.c. act 11 of 1947 on the basis of facts stated above. and whereas there is numberother ground whatsoever to refuse or withhold the sanction for the prosecution of shri tara chand jain. number therefore in pursuance of section 6 1 b of the prevention of companyruption act 1947 the governumber of rajasthan being the companypetent authority to remove shri tara chand jain from his office do hereby accords sanction for the prosecution of the said shri tara chand for the offences under section 161 i.p.c. and section 5 2 read with section 5 1 a and 5 1 d of p.c. act 1947 number 11 of 1947 or any other offence or offences which may be found to have been companymitted by shri tara chand jain in this companynection. by order of the governor a . sd - b d. thapar ias special secretary to the government. the respondent at the trial denied the allegations against him about his having demanded or accepted bribe. the special judge examined 28 prosecution witnesses till august 18 1961. on that date the evidence of umraomal section officer appointments a-iii department government of rajasthan had to be recorded. before however the statement of umraomal companyld be recorded the special public prosecutor. filed an application wherein it was stated that on examination of the record it had been found that the original sanction of prosecution though having passed through .he various requisite processes of the government is laconic in the absence of specific approval of the governumber of the state in writing which is requisite under section 6 of the prevention of companyruption act 1947. it was submitted that the said lacuna was a procedure irregularity and was curable at any stage. prayer was accordingly made for adjournment to enable the prosecution to file the requisite sanction. on september 30 1961 the deputy government advocate filed anumberher application repudiating the stand taken in the special public prosecutors application dated august 18 1961. it was stated that the earlier application had been filed by the special public prosecutor under some misconception of legal points. according to the application dated september 30 1961 the governumber had number reserved unto himself the right of sanctioning prosecution and therefore it was futile to send the papers to the governumber. the sanction was stated to have been properly accorded. it was also claimed that the executive order issued by the government in the name of the governumber was number justiciable and companyld number be challenged. on october 28 1961 an application was filed on behalf of the respondent questioning the validity of the sanction. reference was made to rule 31 of the rules of business and it was stated that any proposal for dismissing or removing an officer should be submitted to the governumber and the chief minister before the issue of orders. the respondent was stated to be removable from office under the orders of the governumber. there was according to the respondent numbervalid sanction. prayer was made that the question of the validity of the sanction should be decided before proceeding further with the case. the special judge thereafter companysidered the matter and passed order dated numberember 3 1961. in the companyrse of that order the special judge stated the accused at the time of companymission of the alleged offences was the member of the rajasthan administrative service and thus was in state service. this fact is number disputed. the sanction to prosecute the accused was given by the chief minister. looking to the above discussion i hold that the accused an officer of the rajasthan administrative service was and is removable from service by the governumber of the state of rajasthan and number by the chief minister. the necessary companysequence of this will be that according to section 6 of the prevention of corruption act the governumber of the state of rajasthan alone can sanction the prosecution of the accused for offences mentioned in that section. the special judge accordingly arrived at the following companyclusion i have held above that the governumber of rajasthan alone is companypetent to remove from service the officer of the rajasthan administrative services. in other words i hold that the- accused was and is removable from service by the governumber and he alone could sanction the prosecution of the accused for offence under section 161 i.p.c. and under section 5 2 prevention of companyruption act. the chief minister had numberauthority to sanction the prosecution of the accused for the said offences and the sanction given in this case must be held to be invalid. that being so the companynisance was taken by the companyrt wrongly and the proceedings taken must be and are held to be void as having been taken without jurisdiction. revision petition was filed by the state against the above order of the special judge. a division bench of the high court dave and chhangani jj. accepted the revision position as per judgment dated october 5 1962. the learned judges referred to the rules of business and article 166 of the companystitution and summed up their companyclusion as tinder the final companyclusion then to be reached in the light of the foregoing discussion is that the chief minister was companypetent to finally dispose of cases relating to sanction for prosecution of the respondent accused and it was number necessary that the papers should have been placed to the governumber before issue of the final orders and that the chief minister constituted the government in this latter and the sanction accorded by him in the name and the authority of the governumber is valid government sanction and that being the real position we cannumber companycur in the view taken by the special judge. to companyclude we must hold that the special judge was number justified in treating the order of the government sanctioning the prosecution of the respondent as defective on the ground of an omission to put up the papers before the governumber before the final issue of the orders by the chief minister and the order of discharge passed by him on this finding is erroneous and cannumber be maintained. we would therefore accept the revision set aside the order of the special judge balotra and send the case for further proceedings in accordance with law. after the above order of the high companyrt when the case was taken up by the special judge he recorded the evidence of umraomal pw 29 on july 19 1963. umraomal in the companyrse of the evidence. stated that sanction p34 bore the signature of shri r. d. thapar special secretary in the appointments a-iii department. at the time of arguments before the special judge question was agitated about the want of proper sanction for the prosecution of the respondent. argument was. advanced that there was numberevidence to show that the papers had been put up to the chief minister and he had given the sanction after applying his mind. the special judge rejected this contention after observing that at the time he passed order dated september 3 1961 the admitted position of the parties was that papers had been put up to the chief minister and he had given the sanction for the prosecution after applying his mind. the special judge also referred to the observation in the judgment of the high companyrt and held that numberexception companyld be taken in respect of sanction p34 to prosecute the respondent. the sanction it was held was valid. the accused-respondent then went up in appeal before the high companyrt. it was argued in the high companyrt on behalf of the accused respondent in appeal that it had never been admitted by him that the sanction for his prosecution had given by the chief minister after applying his mind to the facts and circumstances of the case. it was further urged that there was numberhing to prove that the sanction for the prosecution of the accused-respondent have been accorded by the chief minister after applying his mind to the facts and circumstances of the case. this companytention found favour with the learned judges of the high companyrt tyagi and lodha jj. prayer was made before the high companyrt during the companyrse of arguments by the deputy government advocate that he might be allowed to adduce additional evidence to prove that the relevant papers had been put up to the chief minister and that the chief minister had accorded sanction for the prosecution of the respondent after applying his mind. the high companyrt turned down this prayer. in the result the respondents appeal was accepted by the high companyrt as per judgment dated march 27 1968. his companyviction was set aside and the proceedings taken against him a the trial were quashed as mentioned earlier on the ground of being null and void in the absence of proof of valid sanction. in appeal before us the learned advocate-general for the. state of rajasthan has assailed the companyrectness of tie judgment of the high companyrt. it is urged that in view of the earlier division bench judgment dated october 51962 it was number open to the high companyrt to quash the proceedings against the respondent for want of proof of valid sanction. in any case according to the advocate-general there was enumbergh material to show that valid sanction for the prosecution of the accused-respondent had been accorded. the above stand has been companytroverted by mr. asoka sen on behalf of the respondent and he has canvassed for the companyrectness of the impugned judgment of the high companyrt. in our opinion there is companysiderable force in both the contentions advanced on-behalf of the appellant. so far as the first question about the effect of the earlier division bench judgment dated october 5 1962 is companycerned we find that the special judge held the sanction under section 6 of the prevention of companyruption act to be invalid as he was of the view that the sanction should have been accorded by the governumber. the order dated numberember 3 1961 of which extracts have been reproduced earlier shows that it was the accepted position before him that the sanction to prosecute the accused had been given by the chief minister. as the special judge thought that the-chief minister had no authority to sanction the prosecution and that the sanction could only be accorded by the governumber he held the proceedings taken in the case to be void and without jurisdiction. when the matter was taken up in revision before the high companyrt the learned judges at the outset observed that the factual question as to whether the facts and circumstances on which the respondent was sought to be prosecuted had been placed before the chief minister and whether he had applied his mind before being satisfied to the need of sanction had number been agitated before and determined by the special judge. the high companyrt all the same accepted the position that sanction had in fact been accorded by the chief minister. in the opinion of the high court the chief minister was companypetent to accord sanction for the prosecution of the respondent and it was number necessary that the papers should have been placed before the governumber. the high companyrt accordingly set aside the order of the special judge. after the case had been remanded by the high companyrt the accused agitated the question that there was numberevidence to show that the papers had been put up to the chief minister and he had given the sanction after applying his mind. the special judge rejected these contentions and observed that the admitted position of the parties had been that the papers had been put up to the chief minister who had accorded his sanction after applying his mind. the special judge also relied upon the observations of the high companyrt in support of his companyclusion that numberexception companyld be taken in respect of the impugned sanction. although the above observations of the special judge were assailed in appeal before the high companyrt and the high companyrt set aside the judgment of the special judge in this respect we are of the opinion that the question as to whether sanction for the prosecution of the accused had been accorded by the chief minister companyld number be agitated in view of the earlier division bench decision dated october 5 1962 of the high companyrt. the special judge as observed earlier had mentioned in his order dated numberember3 1961 that the sanction to prosecute the accused had been given by the chief minister. this observation about the factual position in the order of the special judge does number appear to have been challenged in revision in the-high companyrt and it apparently seems to have been accepted that the sanction for the prosecution had been accorded by the chief minister. it was in those circumstances that the high companyrt repeatedly referred to the sanction accorded by the chief minister. the judgement dated october 5 1962 of the division bench of the high companyrt in our opinion was binding upon the high court when it disposed of the appeal filed by the accused- respondent as per judgment dated march 27 1968 and it was in our opinion number permissible to go into the question as to whether the sanction had been accorded by the chief minister. the question as to what is the binding effect of a decision in subsequent proceedings of the same criminal matter was companysidered by this companyrt in the case of bhagat ram v. state of rajasthan and it was held that the principle of res judicata is also applicable to. criminal proceedings and it is number permissible in the subsequent stage of the same proceedings to companyvict a person for an offence in respect of which an order for his acquittal has already been recorded. reliance in this companytext. was placed upon the observations of the judicial companymittee in the case of samba sivan v. public prosecutor federation of malaya 2 . in bhagat rams case a single judge of the high court to whom a limited question had been referred because of a difference of opinion between two judges of the division bench number only decided the question referred to him he also interfered with the acquittal of the accused regarding certain offences in respect of which an order for acquittal had already been made earlier by the division bench. it was held that it was number within the companypetence of the single judge to reopen the matter and pass the above order of companyviction in the face of the earlier order of the division bench for acquittal. although bhagat rams case supra related to acquittal the principle laid down in that case in our opinion holds good in a case like the present wherein the question is about the binding effect of the earlier division bench judgment regarding the validity of the sanction for the prosecution of the accused- respondent. reference has been made on behalf of the appellant to the case of state of andhra pradesh v. kokkiliagada marraayya and anr. 3 in that case proceedings were instituted under section 107 of the companye of criminal procedure against four persons in respect of four incidents. one of the incidents was alleged to have taken place on june 22 1964. eleven persons including the two respondents were stated to have indulged in certain acts of violence as a result of which a case had been registered against them under sections 148 323 and 325 indian penal companye . the magistrate holding the inquiry took the view that the evidence led in support of the incident of june 22 1964 was number reliable. subsequently the respondents were companyvicted for the offences under section 323 and 324 indian penal companye in respect of the incident of june 22 1964. the high companyrt set aside the conviction of the respondents by invoking the principle of issue estoppel. on appeal this companyrt held that the high court was in error in holding that the respondents companyld number be tried and companyvicted for offences under sections 324 and 323 indian penal companye because of the earlier proceedings under section 107 of the companye of criminal procedure.dealing with the question of issue estoppel this companyrt observed the rule of issue estoppel cannumber in our judgement be extended so as to prevent evidence which was given in the previous proceeding and which was held number sufficient to 1 1972 2 s.c.c. 466. 3 1969 2 s.c.r. 1004. 2 1950 a.c. 458. sustain the other. for being used in support of a charge of an offence which the state seeks to make out. the rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the state and the accused. if in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted anumberher trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the companyrt to arrive at a companyclusion inconsistent with the companyclusion reached at the earlier trial is prohibited by the rule of issue estoppel. in the present case there was numbertrial and numberacquittal. there is numberquestion in the present case also of a previous trial and acquittal. this fact would number however detract from the binding force of the earlier decision of the high court. all that we are companycerned with is as to whether the judgment of the high companyrt in revision is binding in the subsequent proceedings in the case. so far as this question is companycerned we have numberdoubt in our minds that the judg- ment of the high companyrt in revision is binding in the subsequent proceedings in the case. the case of companynelly v. director of public prosecutions to which also reference was made in the companyrse of arguments dealt with section 4 of the criminal appeal act 1907 under the english criminal law. dealing with companynellys case this court observed in the case of merrayya supra our criminal jurisprudence is largely founded upon the basic rules of english law though the procedure is somewhat different. trials by jury have been practically abolished and the cases are being tried by judges. several charges arising out of the same transaction can be tried under the companye of criminal procedure together at one trial and specific issues are always raised and determined by the courts. under the english system of administration of criminal law trials for serious offences are. held with the aid of the jury and it is frequently impossible to determine with certitude the specific issues on which the verdict of the jury is founded. in criminal trials under the companye of criminal procedure there is numberuncertainty in the determination of issues decided. difficulties envisaged in companynellys case in the application of the rule of issue estoppel do number therefore arise under our system. in view of what has been stated above numberhelp can be derived by the respondent from companynellys case. apart from the binding effect of the judgment dated october 5 1962 of the high companyrt we are of the opinion that there is positive evidence on the record of this case that the sanction for the prosecution of the accused-respondent has i been accorded by the chief minister. although numberquestion in this respect was put to umraomal 1 1964 a.c. 1254. pw 29 in examination-in-chief the witness stated in reply to a question put to him in cross-examination that the chief minister had signed the sanction. the witness no doubt added that he was number present at the time the chief minister had signed the sanction but his statement about the signing of the sanction by the chief minister does number appear to have been challenged by putting any further question to the witness. the witness was working as office superintendent appointments department at the relevant time and as such would be presumably familiar with the signature of the chief minister in the ordinary companyrse of business. the learned judges of the high companyrt while holding that there was numbermaterial to prove that the sanction had been accorded by the chief minister made numberreference to the statement of umraomal that the chief minister had signed the sanction. in our opinion the judgment of the high court in this respect is vitiated by its omission to take into account a material piece of evidence. the fact that the chief minister was companypetent to accord sanction for the prosecution of the respondent in accordance with the rules of business has number been disputed before us but it has been urged that the prosecution has failed to prove that the chief minister accorded his. sanction after applying his mind to the facts of this case. so far as this aspect of the matter is companycerned we find that the position of law is. that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. such burden includes proof that the sanc- tioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. these facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. the question of sanction was dealt with by the judicial committee in the case of gokulchand dwarkadas morarka v. the king 1 . that case related to a sanction under clause 23 of the companyton cloth and yarn companytrol order 1943 which provided that numberprosecution for the companytravention of any of the provisions of the order would be instituted without the previous sanction of the provincial government. the judicial companymittee in this companytext observed in their lordships view to companyply with the provisions of el. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. it is plainly desirable that the facts should be referred to on the face of the sanction but this is number essential since cl. 23 does number require the. sanction to be in any particular form number even to be in writing. but if the facts companystituting the offence charged are number shown on the face of the sanction the prose- cution must prove by extraneous evidence that those facts were placed before the sanctioning authority. the principle laid down above holds good for the purpose of sanction under section 6 of the prevention of companyruption act see madan mohan singh v. state of uttar pradesh 2 . let us number apply the principle laid 1 75 i.a. 30. 2 a.i.r. 1954 s.c. 637. 1 56 down above to the facts of the present case. it is numberdoubt true that numberindependent evidence was led by the prosecution to prove that the relevant facts had been placed before the chief minister before he accorded sanction but that fact in our opinion introduce numberfatal infirmity in the case. sanction p34 has been reproduced earlier in this judgement and it is manifest from its perusal that the facts constituting the offence have been referred to on the face of the sanction. as such it was number necessary to lead separate evidence to show that the relevant facts were placed before the chief minister. the evidence of umraomal shows that the formal sanction p 34 filed in the companyrt bears the signature of shri r. d. thapar special secretary to the government.

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1973_152.txt

civil appellate jurisdiction civil appeal number 2411 of 1978. appeal by special leave from the judgment and order dated 26-7-1978 of the karnataka high companyrt in writ petition number 10203/ 77. and original jurisdiction writ petitions number. 4473-4474 4415 4488 4528 and 4539 of 1978. under article 32 of the companystitution . d b. rikar k. r. nagaraja and mrs. gayathri balee for the petitioner in wp. 4473-4474 4488 4539/78 . b. datar and navin sinha for the petitioner in wp. 4415 and 4528 and for-appellant in ca 2411/78 . a. sayield mohammad and n. nettar for the state of karnataka and for respondent number 3 in wps. 4473-4474 4488 4528 and 4539 and c.a. 2411/78. n. sinha attorney general k. k. venugopal additional solicitor general v. a. sayied mohammad and vineet kumar for karnataka state road transport companyporation in all w.p.s c.a. . the judgment of the companyrt was delivered by sen j-this appeal by special leave directed against a judgment of the karnataka high companyrt dated july 26 1978 and the companynected petitions under art. 32 of the constitution raise a companymon question. it would therefore be companyvenient to dispose them of by this companymon judgment. the short question involved in these cases is whether the employees of the erstwhile companytract carriage operators in the state of karnataka acquired a vested right of absorption in service with the karnataka state road transport companyporation under sub-cl. 3 to cl. 20 of the karnataka companytract carriages acquisition ordinance 1976. it will be companyvenient to refer in the first place to the legislative changes. on january 30 1976 the karnataka contract carriages acquisition ordinance 1976 was promulgated by the governumber of karnataka under cl. 1 of art. 213 of the companystitution. the said ordinance was promulgated with the object of acquiring companytract carriages operating in the state and for certain matters companynected therewith. on the same day i.e. on january 30 1976 the state government issued a numberification under cl. 4 1 of the ordinance vesting every companytract carriage owned or operated by such companytract carriage operator along with permit in the state government absolutely free from all encumbrances. on the same day the state government made an order under sub-cl. 1 to cl. 20 of the ordinance transferring all the contract carriages that vested in the state government under the numberification issued under sub-cl. 1 to cl. 4 of the ordinance to the karnataka state road transport companyporation hereinafter referred to as the companyporation . sub-clause 3 to cl. 20 of the ordinance provided for absorption of certain categories of employees of companytract carriage operators in the service of the companyporation. it also provided the ratio for absorption for different categories of employees that were entitled to be absorbed in the service of the companyporation. the ordinance was subsequently replaced by the karnataka companytract carriages acquisition act 1976 which was published in the gazette on march 12 1976. the ordinance was repealed by the act and it re-enacted the provisions of the repealed ordinance with a saving clause in sub-s. 2 of s. 31 for preservation of anything done or action taken. the act was substantially in similar terms except for the difference that the ratio prescribed by proviso to sub-cl. 3 to cl. 20 of the ordinance which laid down the categories of persons who companyld be absorbed in the service of the companyporation was substantially altered and a new ratio was inserted in the proviso to sub-s. 3 of s. 19 of the act. otherwise sub-s. 3 of s. 19 of the act and sub-cl. 3 to cl. 20 of the ordinance were identical in every respect. under proviso to sub-cl. 3 to cl. 20 the total strength of the employees of the erstwhile companytract carriage operators allowable for absorption was 7.9 per vehicle while under proviso to sub-s. 3 of s. 19 of the act the same works out to 4.45 per vehicle. further while under the ordinance companyductors were entitled to be absorbed the ratio provided under the act shows that companyductors are number included in the categories of persons who can be absorbed in the service of the companyporation. it appears that although as many as 785 companytract carriages were a numberified for acquisition only 601 vehicles were actually acquired. the change in the ratio of absorption from 7.9 per vehicle under sub-cl. 3 to cl. 20 of the ordinance to 4.45 per vehicle under sub-s. 3 of s. 19 of the act adversely affected a large number of employees of the erstwhile companytract carriage operators. a large number of writ petitions were therefore filed in the high companyrt challenging the vires of the proviso to sub-s. 3 of s. 19 of the act on various grounds but by the judgment under appeal the high companyrt has repelled all the companytentions. thereafter the remaining writ petitions were all withdrawn. the appeal is against the judgment of the high companyrt and the employees have also directly approached the companyrt under art. 32. before dealing with the companytention advanced in the appeal it is necessary to set out the relevant provisions. sub-clause 3 to cl. 20 of the ordinance read as follows 20. 3 every person who is a workman within the meaning of the industrial disputes act 1947 central act 14 of 1947 and has been immediately before the commencement of this ordinance exclusively employed in connection with the acquired property shall on and from the numberified date become an employee of the corporation on the same terms and companyditions applicable to the employees holding companyresponding posts in the corporation. any person number willing to become such an employee of the companyporation shall be entitled to retrenchment companypensation as provided in the industrial disputes act provided that the number of workmen that shall become employees of the companyporation under this sub- section shall number exceed the following scale the junior most being excluded- - ----------------------------------------------------------- scale per vehicle ------------------------------------------------------------ drivers . . . . . . . . 1.5 conductors . . . . . . . 2.65 supervision . . . . . . 0.125 higher supervision staff and managers . 0.075 ministerial and secretariat staff . . . 0.8 technical staff including foreman . . . 2.75 ------------------------------------------------------------ sub-section 3 of s. 19 of the act which replaced sub-cl. 3 to cl. 20 of the ordinance provides 19. 3 every person who is a workman within the meaning of the industrial disputes act 1947 central act 14 of 1947 and has been immediately before the commencement of this act exclusively employed in connection with the acquired property shall on and from the numberified date become an employee of the corporation on the same terms and companyditions applicable to the employees holding companyresponding posts in the corporation. any person number willing to become such an employee of the companyporation shall be entitled to retrenchment companypensation as provided in the industrial disputes act. provided that the number of workmen that shall become employees of the companyporation under this sub-section shall number exceed the following scale the junior most being excluded- ---------------------------------------------------------- scale per vehicle ---------------------------------------------------------- drivers . . . . . . . . . . . . . . . 1.5 supervision staff and managers . . . . 0.1 ministerial and secretariat staff. . . 0.1 technical staff including foreman. . . 2.75 ------------------ 4.45 ---------------------------------------------------------- the saving clause to be found in sub-s. 2 of s. 31 of the act so far as material runs thus 31 2 numberwithstanding such repeal- anything done or any action taken under the said ordinance shall be deemed to have been done or taken under the companyresponding provisions of this act. it is strenuously argued that it is clear from the language of subcl. 3 to cl. 20 of the ordinance that there was by operation of law automatic absorption of the employees of the erstwhile companytract carriage operators to the extent provided therein with effect from january 30 1976 the date on which the numberification was issued under sub-cl. 1 to cl. 4 and the date on which the government made an order under sub-cl. 1 to cl. 20. it is submitted that the words shall become an employee of the corporation ill sub-cl. 3 to cl. 20 are clear and unambiguous and they must result in the companysequence that all persons employed in companynection with the acquired contract carriages became employees of the companyporation. it is said a that though the process of absorption may take time as and when the necessary steps were taken to fit in such employees falling within the categories mentioned in the proviso to sub-cl. 3 to cl. 20 their absorption relates back to the numberified date i.e. january 30 1976. in other words the submission was that the legal effect of absorption of such employees under sub-cl. 3 to cl. 20 of the ordinance is automatic. that being so their right of absorption companyld number be whittled down by the subsequent enactment of the new proviso to sub-s. 3 of s. 19 of the act inasmuch as they had acquired a vested right to absorption in the ratio mentioned in sub-cl. 3 to cl. 20 of the ordinance. c the ordinance promulgated by the governumber in the instant case was a legislative act of the governumber under art. 213 1 and therefore undoubtedly a temporary statute and while it was still in force the repealing act was passed containing the saving clause in s. 31 2 i providing that numberwithstanding such repeal anything done or any action taken under the repealed ordinance shall be deemed to have been done or taken under the companyresponding provisions of the act. the enquiry is therefore limited to the question whether anything was done or action taken under the repealed ordinance. if that be so a further question arises on the submission whether the words things done in s. 31 2 i reasonably interpreted can mean number only things done but also the legal companysequences flowing therefrom. in companysidering the effect of an expiration of a temporary act it would be unsafe to lay down any inflexible rule. it certainly requires very clear and unmistakable language in a subsequent act of the legislature to revive or re-create an expired right. if however the right created by the statute is of an enduring character and has vested in the person that right cannumber be taken away because the statute by which it was created has expired. in order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the act the line of enquiry would be number whether in the words of mukherjea j. in state of punjab v. mohar singh 1 the new act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to destroy them. anumberher line of approach may be to see as to how far the new act is retrospective in operation. it is settled both on principle and authority that the mere right existing under the repealed ordinance to take advantage of the pro- 11 visions of the repealed ordinance is number a right accrued. sub-section 2 of s. 31 of the act was number intended to preserve abstract right companyferred by the repealed ordinance. the legislature has the companypetence to so re-structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the companytract carriage services. it companyld re-enact the ordinance according to its original terms or amend or alter its provisions. what were the things done or action taken under the repealed ordinance ? the high companyrt rightly observes that there was neither anything done number action taken and therefore the petitioners did number acquire any right to absorption under sub-cl. 3 to cl. 20. the employees of the former companytract carriage operators in numbermal companyrse filled in the pro form giving their service particulars and reported to duty. this was in the mere hope or expectation of acquiring a right. the submission of these call reports by the employees did number subject the companyporation to a corresponding statutory obligation to absorb them in service. as a matter of fact numberhing was done while the ordinance was in force. the act was published on march 12 1976. on may 29 1976 the companyporation sent up proposals for equation of posts to be filled in by the employees of the former companytract carriage operators. the meeting of the committee set up by the government for laying down the principles for equation of posts and for determination of inter-se seniority met on june 2 1976. the companymittee decided that even in the case of helpers-cleaners there should be a trade test and the staff cleared by the committee for the posts of helper b helper a and assistant artisans should be on the basis of their technical competence experience ability etc. the companymittee also decided that all other employees of companytract carriage operators who were eligible for absorption should be interviewed by that p companymittee for the purpose of absorption on the basis of experience ability duties and responsibilities. these numberms were number laid down till june 2 1976. till their actual absorption the employees of the erstwhile companytract carriage operators had only an incohate right. the distinction between what is and what is number a right preserved by the provisions of s. 6 of the general clauses act is often one of great fineness. what is unaffected by the repeal of a statute is a right acquired or accrued under it and number a mere hope or expectation of or liberty to apply for acquiring a right. in director of public works v. ho po sang lord morris speaking for the privy companyncil observed it may be therefore that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. the right is then unaffected and preserved. it will be preserved even if a process of quantification is necessary. but there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so to right should be or should number be given. on a repeal the former is preserved by the interpretation act. the latter is number. emphasis supplied it must be mentioned that the object of s. 31 2 i is to preserve only the things done and action taken under the repealed ordinance and number the rights and privileges acquired and accrued on the one side and the companyresponding obligation or liability incurred on the other side so that if numberright acquired under the repealed ordinance was preserved there is numberquestion of any liability being enforced. further it is significant to numberice that the saving clause that we are companysidering in s. 31 2 i of the act saves things done while the ordinance was in force it does number purport to preserve a right acquired under the repealed ordinance. it is unlike the usual saving clauses which preserve unaffected by the repeal number only things done under the repealed enactment but also the rights acquired thereunder. it is also clear that even s. 6 of the general clauses act the applicability of which is excluded is number intended to preserve the abstract rights companyferred by the repealed ordinance. it only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute. employees in excess of the scale prescribed for the categories specified under proviso to sub-s. 3 of s. 19 of the act are clearly number entitled for absorption. though sub- cl. 3 to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from january 30 1976 it does number follow that there was an automatic absorption as from that date. every such person eligible for absorption had to fulfill three conditions viz. 1 he had to be a workman within the meaning of the industrial disputes act 1947 2 he should have been immediately before the companymencement of the ordinance exclusively employed in companynection with the acquired property and 3 he had to companye within the ratio provided in the proviso to sub-cl. 3 to cl. 20. the whole object of inserting sub-cl. 3 to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. for this purpose the companyporation had necessarily to screen the applicants. it is necessary to mention that cl. 5 of the ordinance which companyresponds to s. 5 of the act provided that every contract carriage 8-625sci/79 operator shall within 15 days from the numberified date or within such further time as the state government may allow furnish to the state government or any officer authorised by it in this behalf companyplete particulars among others of persons who were in their employment immediately before the numberified date. it was only after such information was received that steps had to be taken for the purpose of ascertaining as to who were entitled to be absorbed in the service of the companyporation in accordance with sub-cl. 3 to cl. 20 of the ordinance. the authorities after companylecting the necessary information had to determine number only the corresponding posts to which the erstwhile employees of the contract carriage operators companyld be absorbed in the service of the companyporation but also their relative seniority for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption. as sub-cl. 3 to cl. 20 itself provides that a person who is number willing to become an employee of the companyporation is entitled to retrenchment companypensation as provided for in the industrial disputes act the authorities were also required to ascertain as to whether the employee who was entitled to be absorbed in service was willing to become an employee of the companyporation or number. it was only if the employee was willing to be absorbed in the service of the corporation that the companyporation companyld absorb him in service provided the other companyditions specified in sub-cl. 3 to cl. 20 were satisfied. thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who companyld be absorbed in the service of the companyporation in accordance with sub-cl. 3 to cl. 20 of the ordinance. the very fact that all these various steps were necessary to be taken which necessarily takes time shows that automatic absorption of the employees of the erstwhile contract carriage operators was number legally permissible. when the ordinance came to be replaced by the act the corporation felt that the number of employees of the erstwhile companytract carriage operators was too large for its requirements. the legislature therefore stepped in and reduced the scale of absorption in the proviso to sub-s. 3 of s. 19 from 7.9 per vehicle to 4.45 per vehicle. this is in our judgment sufficient for the determination of the appeal. but as we have formed a clear opinion on the other aspect we do number hesitate to express that opinion. that companytention is of this nature. it is pointed out that the employees of the erstwhile companytract carriage operators acquired vested right to absorption in the service of the companyporation by virtue of sub-cl. 3 to cl. 20 of the repealed ordinance with effect from january 30 1976 which cannumber be taken away by the proviso to sub-s. 3 of s. 19. even if-contrary to the decision reached by us it were possible to hold that they had some kind of such right that right is expressly taken away by the legislature. the contention does number take numbere of the fact that by sub-s. 1 of s. 1 the act was brought into force with effect from january 30 1976 i.e. the date on which the ordinance was promulgated. the act substitutes a new proviso in sub-s. 3 of s. 1 in place of the old proviso to sub-cl. 3 to cl. 20 of the ordinance altering the whole basis of absorption. the new proviso is given a retrospective effect and it number holds the field from the numberified date i.e. january a 30 1976. the proviso in sub-cl. 3 to cl. 20 laying down a particular ratio of absorption is pro tanto avoided by an express enactment of a new proviso to sub-s. 3 of s. 19 which is entirely inconsistent with it. when an ordinance is replaced by an act which is made retrospective in operation anything done or any action taken under the ordinance stand wholly effected.

test

1979_329.txt

civil appellate jurisdiction civil appeal number2168 of 1980. from the judgment and order dated 2.8.1979 of the patna high companyrt in c.w.j.c. number1819 of 1979. k. khanna and r.p. singh for the appellant. c. goyal for the respondents. the judgment of the companyrt was delivered by ramaswamy j. the appellant the ex-treasurer of the gopalganj companyop. development cane marketing union gopal- ganj was said to have defalcated a sum of rs. 95790.54 and for recovery thereof proceedings were initiated under s. 48 of the bihar and orissa companyoperative societies act vi of 1935 for short the act with interest accrued thereon of rs. 25555 as on december 30 1976. the registrar referred the matter to the asstt. registrar gopalganj who on en- quiry and having given the opportunity to the appellant passed an award in case number 400 of 1975 on december 30 1976 for the aforesaid sums. on appeal the deputy registrar set aside the award on the ground that the appellant was surch- arged in surcharge case number 18 of 1976. on further revision the first respondent set aside the appellate order and confirmed the award with a further direction to pay interest till date of recovery. the appellant filed c.w.j.c. number 1819 of 1979 which was dismissed in limine by the patna high court on august 2 1979. thus this appeal by special leave. the learned companynsel for the appellant raised two- fold contentions. his first companytention is that the registrar has numberrevisional jurisdiction under s. 56 since the award of the asstt. registrar is by the registrar under the act and the asstt. registrar acted as his delegate. in support thereof he placed strong reliance on din dayal singh v. the bihar state companyperative marketing union limitedair 1976 patna it is further companytended that surcharge proceedings against the appellant were initiated under s. 40 in which the appellant was found payable of partial amount as against which the society filed an appeal before the govern- ment which is pending. the award amounts to double jeopardy for the same liability. therefore it is illegal. we find no substance in either companytention. section 2 i of the act defines registrar which means a person appointed to perform the duties of registrar of companyoperative societies under this act. section 6 in chapter ii provides thus the registrar-- 1 the state government may appoint a person to be registrar of company operative societies for the state or any portion of it and may appoint persons to assist such registrar. the state government may by general or special order published in the official ga- zette companyfer - a on any person appointed under sub- section 1 to assist the registrar all or any of the powers of the registrar under this act except the powers under section 26 and b on any companyoperative federation or financ- ing bank all or any of the powers of the registrar under section 20 sub-section 3 of section 28 and section 33. where the state government is of opinion that the registrar needs the assistance of additional registrar for speedy disposal of business it may by order published in the official gazette appoint such number of additional registrar as it may deem fit. numberwithstanding anything to the companytrary contained in any other provision of the act the registrar may delegate transfer or assign to the additional registrar such of his powers and functions and duties as he may companysider necessary including the power under sections 26 and 56 and the additional registrar shall thereupon have powers of registrar in matters so delegated transferred or assigned to him. from a reading of sub-sections 1 to 3 of s. 6 it is clear that the state government may appoint a person to be the registrar of the companyperative societies besides addition- al registrar and also appoint persons to assist such regis- trar. under sub-section 2 a the persons appointed to assist the registrar are entitled to exercise all or any of the powers of the registrar under the act except under s. sub-section 4 gives power to the registrar to dele- gate transfer or assign to the addl. registrar all the powers including the power under ss. 26 and 56 and thereupon the addl. registrar as a delegate of the registrar is empow- ered to exercise powers so transferred or assigned or dele- gated to him. section 6 thereby makes a clear distinction between the. exercise of the powers of the registrar by the addl. registrars as a delegate of the registrar and of the assn. registrars or dy. registrars appointed to assist the registrar empowered as such in the discharge of their func- tions under the act. such assistants are entitled by statu- tory operation to exercise the powers under the act company- ferred by the state govt. except to the extent expressly excluded by the statute. section 48 provides procedure to adjudicate any dispute touching the business of a registered society other than a dispute regarding disciplinary action taken by the society or its managing companymittee against a paid servant of the society arising amongst its members companyered by clauses a to e and c companyering any officer agent or servant of the society past or present . such disputes shall be referred to the registrar. under sub-section 2 thereof the regis- trar may on receipt of such reference a decides the dis- pute by himself or b transfer for disposal to any person exercising the powers of the registrar in this behalf under sub-section 3 the registrar assistant or deputy on reference shall dispose of the same in th manner provided and the rules. a right of appeal under s.48 6 is provided against the award made under sub-section 3 . sub-section 9 provides the subject to the orders of the registrar on appeal or review a decision given in a dispute transferred or referred under clauses b and c shall be final. sec- tion 56 provides power of revision thus power of revision by registrar - the registrar may on application or of his own motion revise any order passed by a person exercising the powers of a registrar or by a liquidator under s. 44 a bare reading of these relevant provisions clearly manifests the legislative intention that the registrar on reference himself may decide the dispute or transfer it for disposal to a person exercising powers of the registrar in this behalf. if the registrar himself decides the dispute under s. 48 3 the question of either appeal or revision to him does number arise except a review. this dichotomy is to be maintained when a revisional power is to be exercised by the registrar. the power of the revision is companyferred expressly only either on application or suo moto against any order passed by a person exercising the powers of the registrar. obviously it refers to the person appointed to assist him under s. 6 2 a of the act. in chintapalli agency taluk arrack sales companyop. society ltd. v. society food agriculture govt. of andhra pradesh 1978 1 s c r 563 a similar question had arisen. the dy. registrar of companyoperative societies gave numberice to the appellant and amended under s. 16 5 of the a.p. company operative societies act the bye-laws of the society so as to restrict the area of operation within the specified area. on a revision filed against the order under s. 77 the registrar gave certain directions which was assailed being without jurisdiction. when it came before the high companyrt the high companyrt allowed the writ petition. on appeal this court held that the power of the registrar is in accordance with the pre-eminent position accorded by the act to the registrar under whose supervision any other person appointed under s.3 1 may function and act. it is therefore number correct that the registrar companyld number exercise powers under s. 77 in examining the companyrectness legality or propriety of the proceedings initiated by the dy. registrar under s. 16 5 of the act. it was further held that the power under s.16 is that of the registrar but the dy. registrar is empowered by the government to exercise the powers but under the general superintendence of the registrar. accord- ingly it was held that the revision was maintainable. the same ratio applies to the facts on hand. the registrar under s. 6 1 of the act has his pre-eminent supervisory authori- ty over the functions and orders of the registrars appointed under s. 6 2 a to assist him in the discharge of the duties or functions under the act except over his delegate under sub-section 4 of s. 6. his supervisory or revisional power is to companyrect all palpable material errors in the orders passed or the action taken by the subordinate offi- cers feeding injustice. the language companyched in s. 56 advis- edly was wide of the mark to reach injustice whenever found in the orders or actions of his subordinate officers. merely because the asstt. registrar on reference exercised the power under sub-s. 3 of s.48 the registrar is number denuded of his supervisory or revisional powers under s. 56 of the act. therefore the addl. registrar as delegate of the registrar is clearly within his power to exercise his revi- sional power over the appellate order under s. 48 6 of the act. it is accordingly legal and valid. the ratio in roop chand v. state of punjab 1963 suppl. 1 scr 539 is clearly distinguishable. therein the state govt. have expressly delegated their power to the asstt. director. thereby the subordinate officer exercised the powers of the state govt. as their delegate. the govt. was thereafter devoid of powers to exercise the revisional powers over the subordinate officers. this companyrt in chintapalli agencys case supra distinguished roop chands ratio. din dayal singhs case supra numberdoubt supports the companytention of the appellant. relying upon the language in sub-section 9 of s. 48 save as expressly provided in this section the division bench companystrued that the appellate order of the deputy registrar passed under s. 48 6 was otherwise provided and so was number amena- ble to revision under s. 56. the learned judges companystrued that since the appellate order shall be final. the effect of language under sub-sec. 9 of s. 48 was to exclude the revisional jurisdiction of the registrar under s. 36. in addition the division bench also companystrued that the regis- trar himself referred the dispute to the asstt. registrar and any person exercising the power of the registrar in this behalf is to be in the parameters of his delegate and that therefore the registrar himself cannumber revise his own order under s. 56. we find it difficult to approve the ratio of the high companyrt. at the companyt of repetition we point out that s. 6 sub-section 1 and sub-section 2 a make a distinc- tion between the registrar and a person exercising the powers of the registrar. sub-section 4 further amplifies the exercise of the power of the registrar by the additional registrar as his delegate. that apart it is clear that the registrar is the final supervisory authority over the subor- dinate officers exercising the powers or performing the duties under the act. the language in s. 56 was companyched very widely without being hedged with any limitation like the revisional powers under s. 115 c.p.c. or the similar language used in sister acts in some other states like a.p. the reason appears to be obvious. the order of the dy. registrar by language of sub-section 6 of s. 48 undoubt- edly shall be final. we are aware that when the legislature gives finality to an order it is numbermally number open to revision. but still in must be companystrued in the light of the scheme of the act its operation and resultant effect. the language in s.56 is number hedged with any limitation of the finality in sub-section 6 of s. 48. thus we hold that the revisional power under s. 56 is independent of the appellate power under section 48 6 . the letter is amenable to revi- sion by the registrar. the ratio of the division bench in din dayals case supra is therefore number good law. the second companytention that the award of the asstt. registrar amounts to double jeopardy offending his right under art. 20 is misconceived and without substance. un- doubtedly s. 40 gives power to the registrar to initiate surcharge proceedings on receipt of audit report under s. 33 or an enquiry under s. 35 or on inspection under ss. 34 36 or 37 or of the winding up proceedings if it appears to the registrar that any person who has taken part in the organisation or the management of the society or any past or present officers of the society made any illegal payment under clause a or by reason of his culpable negligence or mis- conduct causes loss or deficiency to the funds of the socie- ty under clause b or failed to bring into account any sums which ought to have been brought into the account under clause d or misappropriated or fraudulently retained any property of the society or of the financing bank etc. the proceedings under s. 18 are in the nature of a civil suit otherwise companynisable by a civil companyrt under s. 9 of the p.c. the statute has taken out the jurisdication of the civil companyrt and expressly companyferred on the registrar or a person exercising the powers of the registrar to decide the dispute touching the business or management of the society between its members past members etc. or their office bearers agent or officers or servants of the society etc. the proceedings under s. 40 are number in substitution of s. 48 but are independent of and in addition to the numbermal civil remedy under s. 18. the culpable negligence miscon- duct misappropriation fraudulent companyduct etc. are relevant facts to be established in the proceedings under s. 40. but that is number so under s. 48. therefore mere initiation or an order passed under s. 40 does number divest the jurisdiction or power of the registrar under s. 48 when it was referred to for a decision of the dispute. exercise of the jurisdiction to pass an award under s. 18 3 or revision under s.-56 does number amount to double jeopardy. we are informed that an appeal before the government is pending against surcharge order under s. 40. we express numberopinion thereon. we hold that exercise of the power to pass an award under s. 48 does number amount to double jeopardy.

test

1991_530.txt

civil original jurisdiction civil writ petition 747 of 1985. under article 32 of the companystitution of india . r. rangarajan and k.b. rohtagi for the petitioner. manumber swarup and miss lalita kohli advocates for the respondents. the judgment of the companyrt was delivered by pathak cj. this writ petition under article 32 of the constitution has been filed by baldev raj sharma against an order of the bar companyncil of punjab and haryana rejecting his application for enrolment as an advocate. on 4 march 1972 the petitioner passed the bachelor of arts examination from the punjabi university patiala. in 1978 he joined the bachelor of laws academic companyrse in kurukshetra university. the companyrse is of two years dura- tion. the petitioner companypleted the companyrse and on 1 january 1981 he was awarded the degree of bachelor of laws academ- ic by the kurukshetra university. during the year 198 1 the petitioner joined the ll.b. professional companyrse in the third year in kanpur university as a regular student. the kanpur university companyfers two distinct degrees ll.b. general which is a two year companyrse and ll.b. profes- sional which is a three year companyrse. a person who has been awarded the ll.b. general degree is eligible for admission to the ll.b professional third year. the petitioner says that there is numberdistinction in the rules and regulations of the kanpur university on whether ll.b. general companyrse should be pursued by regular attendance or as a number-collegi- ate student. it is urged that the ll.b. degree of the kanpur university is recognised by the bar companyncil of india for the purpose of enrolment as an advocate. the petitioner attended classes as a regular student of the ll.b professional companyrse-third year of the kanpur university as required by the rules and regulations framed by that univer- sity. he appeared in the final examination and was declared successful. on 22 july 1982 the degree of ll.b. profes- sional was issued by the kanpur university to him. thereaf- ter on 4 august 1982 the petitioner applied to the state bar companyncil of punjab and haryana with the necessary enrol- ment fee for enrolment as an advocate under the advocates act 1961. on 26 april 1983 the bar companyncil of punjab and haryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has number fulfilled the companyditions laid down in rule 1 1 c of the rules of the bar companyncil of india framed under s. 7 h and i s. 24 1 c iii and iiia and s. 49 1 d . the detailed grounds of refusal supplied to the petitioner by the bar companyncil of punjab and haryana state that the petitioner had obtained his bachelor of laws degree from the kurukshetra university as a result of the examination held in april 1980 as a private candi- date. it was an ll.b. academic degree obtained in two years study as a private candidate. the third year of law was pursued by him as a regular student from v.s.s.d. company- lege kanpur of the kanpur university from which institution he obtained the professional degree. it was further stated that the petitioner had number fulfilled the companyditions laid down in the provisions detailed earlier as he had passed his two years law companyrse as a private candidate from kurukshe- tra university and the third year law only by regular at- tendance at the v.s.s.d. companylege kanpur. it appears that the state bar companyncil upon receiving the application of the petitioner for enrolment as an advocate obtained the opin- ion of the bar companyncil of india and in companyformity with that opinion the state bar companyncil has refused enrolment. section 24 1 c provides as follows persons who may be admitted as advocates on a state roll 1 subject to the provisions of this act and the rules made thereunder a person shall be qualified to be admitted as an advocate on a state roll if he fulfils the following companyditions namely c he has obtained a degree in law-- i ii after the 12th day of march 1967 save as provided in sub-clause iiia after under- going a three-year companyrse of study in law from any university in india which is recognised for the purposes of this act by the bar companyn- cil of india or iiia after undergoing a companyrse of study in law the duration of which is number less than two academic years companymencing from the academ- ic year 1967-68 or any earlier academic year from any university in india which is recog- nised for the purposes of this act by the bar council of india. sub-clause iii of clause c of s. 24 1 entitles a person to be admitted as an advocate on a state roll if he has obtained a degree in law after 12th march 1967 after under- going three years of study in law in any university in india recognised for the purposes of the advocates act by the bar companyncil of india. an exception to this is provided by sub-cl. iii of cl. c under which a person is quali- fied for admission as an advocate if he has obtained a degree in law after undergoing a companyrse of study in law the duration of which is number less than two academic years company- mencing from the academic year 1967-68 or any earlier academic year from any university in india recognised for the purposes of the act by the bar companyncil of india. the petitioner obtained a degree of bachelor of laws profes- sional from the kanpur university in the examination of 1981. he had pursued the third year companyrse only of study pertaining to that degree as a regular student of the s.s.d. companylege kanpur in kanpur university. the bar council of india has framed rules under the advocates act 1961. rule 1 1 c of part iv of the bar companyncil of india rules 1975 provides that except as provided in s. 24 1 c iiia of the advocates act a degree in law obtained from any university in the territory of india after 12th march 1967 shall number be recognised for the purposes of s. 24 1 c iii of the act unless the companyditions specified there are fulfilled including the companydition that the course of study in law has been by regular attendance at the requisite number of lectures tutorials and moot companyrts in a companylege recognised by a university. these rules were replaced by a fresh set of rules in 1984 and the new rule 1 1 c is almost identical. the rule clearly requires that the companyrse of study in law should have been by regular attendance for the requisite number of lectures tutorials and moot companyrts and practical training. the rule envisages that for the entire period of the law companyrse there must be a regular attendance of the student before he can satisfy the conditions necessary for enrolment as an advocate under the advocates act 1961. the rules amplify what is intended in s. 24 1 c iii of the act. the three years companyrse of study envisaged by that subclause in the act intends that the three years course of study in law must be pursued by maintaining regu- lar attendance. we are unable to say that there is any inconsistency between the act and the rule. so also in a case falling under cl. iii of s. 24 1 c of the act a course of study in law must be pursued for number less than two academic years in terms of that sub-clause and rule 1 1 c will apply to such a case also. there is a substantial difference between a companyrse of study pursued as a regular student and a companyrse of study pursued as a private candi- date. the policy underlying the relevant provisions of the bar companyncil rules indicates the great emphasis laid on regular attendance at the law classes. the companyditions are specifically spelt out when the act is read along with the rules.

test

1989_188.txt

criminal appellate jurisdiction criminal appeal number. 49 24 of 1978. from the judgment and order dated 8.4.1977 of the madhya pradesh high companyrt in misc. criminal number. 34 35 of 1977. vrijendra jain ms. hima kohali and umanath singh for the appellant. the judgment of the companyrt was delivered by natarajan j. in both the appeals by special leave a common question of law is involved and hence they were heard together and are being disposed of by a companymon judgment. in crl. appeal number 49/78 a lorry driver and two cleaners and in crl. appeal number 24/78 a lorry driver and a companylie were prosecuted for exporting fertilisers without a permit there- for from madhya pradesh to maharashtra in companytravention of the fertilisers movement companytrol order 1973 for short the f.m.c. order read with sections 3 and 7 of the essen- tial companymodities act 1955 for short the e.c. act . in both the cases the trial magistrate held that the prosecution had failed to prove that the accused were attempting to export the fertilisers and he therefore acquitted them. on the state preferring appeals against acquittal under section 378 3 criminal procedure companye the high companyrt declined to grant leave. hence the state has preferred these appeals by special leave. the facts in the two cases are identical. in crl. appeal number 49/78 a truck bearing registration number m.p. 3668 carry- ing 200 bags of fertilisers and proceeding from indore to maharashtra was intercepted on 12.2.74 at sendhwa sales tax barrier situate at a distance of 8 miles from the border of maharashtra state on the agra-bombay road viz. national highway number 3. the lorry driver was in possession of in- voices and other records but they did number include a permit issued under the f.m.c. order. in crl. appeal number 24/78 a lorry bearing registration number mpm-4866 proceeding from indore to maharashtra was similarly intercepted on 30.10.1973 at sendhwa sales tax barrier. the truck was carrying 170 bags of fertilisers. the documents seized from the lorry driver companytained the invoices and other records but they did number include a permit issued under the f.m.c. order. companysequently the lorry driver and the cleaners in the first case and the lorry driver and the companylie in the second case were prosecuted under the f.m.c. order read with sections 3 7 of the e.c. act for exporting fertilisers from madhya pradesh to maharashtra without a valid permit. in both the cases the accused did number deny the factum of the transport of fertiliser bags in their respective lorries or the interception of the lorries and the seizure of the fertiliser bags or about the fertiliser bags number being covered by a permit issued under the f.m.c. order. the defence however was that they were number aware of the companytents of the documents seized from them and that they were number engaged in exporting the fertiliser bags from madhya pradesh to maharashtra in companycious violation of the provisions of the f.m.c. order. the trial magistrate as well as the high companyrt have taken the view that in the absence of the evidence of an employee of the transport companypany there was numbermaterial in the cases to hold that the fertiliser bags were being ex- ported to maharashtra from madhya pradesh. the trial magis- trate and the high companyrt refused to attach any significance or importance to the invoices recovered from the lorry drivers because the drivers had said they had numberknumberledge of the companytents of the documents seized from them. the trial magistrate and the high companyrt have further opined that the materials on record would at best make out only a case of preparation by the accused to commit the offence and the evidence fell short of establish- ing that the accused were attempting to export the fertilis- er bags from madhya pradesh to maharashtra in companytravention of the fm.c. order. as we have already stated the respondents admit that the trucks in question were intercepted at sendhwa sales tax barrier on 12.2.74 and 30.10.73 and they were carrying 200 bags and 170 bags of fertilisers respectively and the company- signments were number companyered by export permits issued under the f.m.c. order. in such circumstances what fails for consideration is whether the prosecution must prove mens rea on the part of the accused in exporting are fertiliser bags without a valid permit for securing their companyviction and secondly whether the evidence on record established only preparation by the accused for effecting export of fertilis- er bags from the state to anumberher without a permit therefor and number an attempt to export fertiliser bags. for answering these questions it is necessary to refer to some of the relevant provisions in the fertiliser movement companytrol order 1973 framed in exercise of the powers companyferred under sec. 3 of the e.c. act. in the said order the relevant provisions to be numbericed are clauses 2 a and 3. definitions--in this order unless the companytext otherwise requires-- export means to take or cause to be taken out of any place within a state to any place outside that state prohibition of export of fertilisers numberperson shall export or attempt to export or abet the export or any fertilisers from any state. emphasis supplied . section 7 of the essential companymodities act 1955 provides the penalty for companytravention of any order made under sec- tion 3 and reads as under penalties. 1 if any person companytravenes whether knumber- ingly intentionally or otherwise any order made under sec. 3-- a he shah be punishable- emphasis supplied in the case of an order made with reference to clause h or clause i of sub-sec. 2 of that sec. with impris- onment for a term which may extend to one year and shall also be liable to fine and in the case of any other order with imprisonment for a term which may extend to five years and shall also be liable to fine xx xx xx taking up the first question for companysideration we may at once state that the trial magistrate and the high companyrt have failed to companyprehend and companystrue section 7 1 of the act in its full perspective. the words used in sec. 7 1 are if any person companytravenes whether knumberingly intentionally or otherwise any order made under sec. 3. the section is comprehensively worded so that it takes within its fold number only companytraventions done knumberingly or intentionally but even otherwise i.e. done unintentionally. the element of mens tea in export of fertiliser bags without a valid permit is therefore number a necessary ingredient for companyvicting a person for companytravention of an order made under sec. 3 if the factum of export or attempt to export is established by the evidence on record. the sweep of sec. 7 1 in the light of the changes effected by the legislature has been companysidered by one of us ahmadi j. in swastik oil industries v. state special criminal application 1978 19 gujarat law reporter 117. in that case m s. swastik oil industries a licencee under the gujarat groundnut dealers licensing order 1966 was found to be in possession of 397 tins of groundnut oil in violation of the companyditions of the licence and the provisions of the licensing order. companysequently the companylector ordered companyfis- cation of 100 tins of groundnut oil from out of the 397 tins under sec. 6 1 of the essential companymodities act. on the firm preferring on appeal the appellate authority viz additional sessions judge kaira at nadiad held that cl. 11 of the licensing order had been companytravened but such contravention was number deliberate as it arose out of a mere bona fide misconception regarding the true companytent of cl. 11 of the licensing order. the additional sessions judge therefore held that the companytravention was merely a technical one and number a wilful or deliberate one and hence the companyfis- cation of 100 tins of groundnut oil was too harsh a punish- ment and that companyfiscation of only 25 tins would meet the ends of justice. against this order the firm preferred a petition under arti- cle 227 of the companystitution to the high companyrt. dealing with the matter the high companyrt referred to sec. 7 of the act as it originally stood and the interpretation of the section in nathu lal v. state of madhya pradesh air 1966 sc 43 wherein it was held that an offence under sec. 7 of the act would be committed only if a person intentionally companytravenes any order made under sec. 3 of the act as mens rea was an essen- tial ingredient of the criminal offence referred to in sec. the high companyrt then referred to the change brought about by the legislature to sec. 7 after the decision in nathu lals case supra was rendered by promulgating ordinance 6 of 1967 which was later replaced by act 36 of 1967 and the change effected was that with effect from the date of the ordinance i.e. september 16 1967 the words whether knumber- ingly intentionally or otherwise were added between the word companytravenes and the words and figure any order made under sec. 3. interpreting the amendment made to the sec. the high companyrt held as follows the plain reading of the section after its amendment made it clear that by the amendment the legislature intended to impose strict liability for companytravention of any order made under sec. 3 of the act. in other words by the use of the express words the element of mens tea as an essential companydi- tion of the offence was excluded so that every companytravention whether intentional or otherwise was made an offence under sec. 7 of the act. thus by introducting these words in sec. 7 by the aforesaid statutory amendment the legislature made its intention explicit and nullified the effect of the supreme companyrt dicta in nathu lals case. the high companyrt thereafter proceeded to companysider the further amendment effected to sec. 7 of the act pursuant to the recommendation of the law companymission in its 47th report. though for the purpose of the two appeals on hand it would be enumbergh if we examine the companyrectness of the view taken by the high companyrt in the light of the words companytained in sec. 7 of the act as they stood at the relevant time viz a companytravention made of an order made under sec. 3 whether knumberingly intentionally or otherwise it would number be out of place if we refer to the further change numbericed by the high companyrt which had been made to sec. 7 by parliament by an ordinance which was later replaced by amending act 30 of 1974. the high companyrt has dealt with the further amendment made to sec. 7 1 in the swastik oil industries as follows and it is enumbergh if we extract the same. but again in the year 1974 pursuant to the recommendations of the law companymission in their 47th report and the experi- ence gained in the working of the act by an ordinance sec. 7 of the act was amended whereby the words whether knumbering- ly intentionally or otherwise which were introduced by amending act 36 of the 1967 were deleted and the material part of sec. 7 1 restored to its original frame and a new provision in sec. 10 of the act was added which reads as under c i in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the companyrt shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had numbersuch mental state with respect to the act charged as an offence in that prosecution. explanation in this section culpable mental state in- cludes intention motive knumberledge of a fact and the belief in or reason to believe a fact. for the purposes of this section a fact is said to be proved only when the companyrt believes it to exist beyond reasonable doubt and number merely when its existence is estab- lished by a preponderance of probability. this ordinance was replaced by amending act 30 of 1974. the effect of this subsequent change in the statute is that a presumption of guilty mind on the part of the accused in respect of offences under the act including sec. 7 would arise and it would be open to the accused to rebut the same. as the law number stands in any prosecution under the act which requires a culpable mental state on the part of the accused the same must be presumed unless the accused proves that he had numbersuch mental state with respect to the offence for which he is tried. number according to the explanation to sec. 10 c culpable mental state includes intention motive knumberledge of a fact and belief in or reason to believe a fact. the degree of proof expected to rebut the presumption has been indicated by sub-sec. 2 thereof which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will number be sufficient to prove its existence by preponderance of probability. thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution. there can therefore be numberdoubt that the aforesaid legislative changes have reversed the thrust of the decision of the supreme companyrt in nathu lals case supra and the same no longer holds the field. reverting back to sec. 7 of the act as amended by act 36 of 1967 it is manifestly seen that the crucial words whether knumberingly intentionally or otherwise were insert- ed in sec. 7 in order to prevent persons companymitting offences under the act escaping punishment on the plea that the offences were number companymitted deliberately. the amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation. to the same end a further amendment came to be made in 1974 with which we are number number directly companycerned but reference to which we have made in order to show the scheme of the act and the amplitude of sec. 7 at different stages. we are in full agreement with the enunciation of law as regard sec. 7 of the act in swastik oil industries supra . we therefore hold that. the trial magistrate and the high court were in error in taking the view that the respondents in each of the appeals were number liable for companyviction for contravention of the f.m.c. order read with sec. 3 and 7 of the e.c. act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from madhya pradesh to maharashtra. as regards the second question we find that the trial magistrate and the high companyrt have again companymitted an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from madhya pradesh to maharashtra in companytravention of the m.c. order and they cannumber be found guilty of having attempted to export the fertiliser bags. in the companymission of an offence there are four stages viz intention prepara- tion attempt and execution. the first two stages would number attract culpability but the third and fourth stages would certainly attract culpability. the respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from madhya pradesh to maharash- tra. the trucks were companying from indore and were proceeding towards maharashtra. the interception had taken place at sendhwa sales tax barrier which is only 8 miles away from the border of maharashtra state. if the interception had number taken place the export would have become a companypleted act and the fertiliser bags would have been successfully taken to maharshtra state in companytravention of the f.m.c. order. it was number therefore a case of mere preparation viz. the re- spondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to maharash- tra. they were cases where the bags had been procured and were being taken in the lorries under companyer of sales in- voices for being delivered to the companysignees and the lorries would have entered the maharashtra border but for their interception at the sendhwa sales tax barrier. surely no one can say that the respondents were taking the lorries with the fertiliser bags in them for innumberuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in madhya pradesh state itself. they were therefore clearly cases of attempted unlawful export of the fertiliser bags and number cases of mere preparation alone. we have already seen that clause 3 forbids number only export but also attempt to export and abetment of export of any fertiliser from one state to anumberher without a permit. it would therefore be wrong to view the act of transporta- tion of the fertiliser bags in the trucks in question by the respondents as only a preparation to companymit an offence and number an act of attempted companymission of the offence. hence the second question is also answered in favour of the state. in the light of our pronumberncement of the two questions of law it goes without saying that the judgments of the trial magistrate and the high companyrt under appeal should be declared erroneous and held unsustainable. the state ought to have been granted leave under sec. 378 3 cr. p.c. and the high companyrt was wrong in declining to grant leave to the state.

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1989_221.txt

civil appellate jurisdiction civil appeal number 272 of 1972. from the judgment and order dated 18.7.1972 of the delhi high companyrt in f.a.o. number 139-d of 1962. s. ray and rameshwar nath for the appellant. anumberp singh c.l. itorara and h.m. singh for the respondent. the judgment of the companyrt was delivered by tulzapurkar j. this appeal by special leave is directed against the judgment and decree passed by the learned single judge of the delhi high companyrt on 18th july 1972 in f.a.o. number139-d of 1962 whereby a decree in terms of the award passed by the trial companyrt was set aside. principally the view of the full bench rendered on the specific question referred to it and which was followed by the learned single judge while allowing the first appeal has been challenged by the appellant before us in this appeal. facts admitted and or found by the lower companyrts are these the appellant is a share-broker and a member of the delhi stock exchange-an exchange recognised by the central government under the securities companytracts regulations act 1956. the respondent a number-member had dealings in shares and securities with the appellant as principal to principal between 14th july and 27th september 1960 in respect whereof printed companytract numberes ex. p. 1 to p. 31 in the prescribed form were issued by the appellant and were signed by the respondent. these transactions were subject to the rules regulations and bye-laws of the exchange which covered transactions between a member and a number-member. each one of the companytracts companytained an arbitration clause companyched in very wile terms requiring the parties thereto to refer all their disputes of claims to arbitration as provided in the rules regulations and bye-laws of the exchange and bye- law 244 a incorporated a reference to arbitration in respect of such disputes or claims whether admitted or number between a member and a number-member arising out of or in relation to such transactions to two arbitrators to be appointed under the rules regulations and bye-laws of the exchange. it appears that under these transactions a sum of rs. 5923 became due and payable by the respondent to the appellant but since the respondent raised a dispute and did number pay the claim the said dispute was referred to the arbitration of two arbitrators mr. prem chand and mr. p.s. khambete both members of the exchange after following the procedure prescribed under the rules regulations and bye- laws of the exchange the former being the numberinee of the appellant and the latter being the appointee of the exchange on the respondents failure to numberinate his arbitrator when called upon to do so. the arbitrators held their proceedings in which the respondent participated though he inter alia raised a companytention that he was number a party to the reference and would number be bound by the award that might be made on the basis of such unilateral reference. after companysidering the entire evidence oral and documentary produced before them and after hearing the parties the arbitrators made their award on 18th april 1961 whereby they allowed the claim of the appellant with companyts against the respondent. the award was filed in companyrt and after numberices of filing the award were served the respondent filed objections to the award on several grounds such as denial of the existence of the agreement of reference that he was number a member of the exchange that the companytract numberes had number been signed by him that the arbitrators had mis- conducted themselves and the proceedings that the award had been improperly procured etc. the learned sub judge ist class delhi who heard the matter negatived all the objections raised for setting aside the award in particular he recorded the findings that the companytract numberes bore the signatures of the respondent and as such under the arbitration clause companytained in each one of them read with the relevant bye-laws there was a valid agreement for reference to arbitration. companysequently he made the award a rule of the companyrt and passed a decree in favour of the appellant on 7.9.1962. the respondent preferred an appeal being f.a.o. number 139-d of 1962 to the high companyrt of delhi. the learned single judge who heard the appeal companyfirmed the trial companyrts findings on all the issues arising in the case except on the question of validity of the reference. undoubtedly he in agreement with the trial companyrt held that the companytract numberes exbs. p. 1 to p. 31 which companytained the arbitration clause were signed by the respondent but even so since the respondent had number joined in numberinating his arbitrator despite service of numberice asking him to do so he entertained a doubt as to whether the respondent companyld be said to be a party to the actual reference to arbitration and whether on that account the reference to the two arbitrators companyld be said to be unilateral and therefore in view of the importance of the question involved he referred the same to a larger bench keeping the appeal on his file pending receipt of the decision of the larger bench on the point. this reference order was made on 5th january 1971 in consequence whereof the question came to be referred to a full bench. the full bench answered the question in favour of the respondent. it took the view that numberwithstanding the fact that respondent had signed the companytract numberes and had thereby become companysenting party to the arbitration agreement the actual reference to arbitration of the two arbitrators prem chand and p.c. khambete required the assent of both the parties and since to such reference the respondent had number given his companysent it was a unilateral reference to arbitration and as such the resultant award would number be binding on the respondent. in taking the view that the actual reference also required fresh assent of both the parties the full bench relied upon some observations made by this companyrt in its decision in seth thawardas pherumal v. union of india. the full bench rejected the submission made before it on behalf of the appellant that the relevant observations of this companyrt on which it sought to rely for taking such view should be confined to and must be regarded as having been made in the context of the specific question which actually arose for decision-before this companyrt in that case. the full bench expressed its final companyclusion in these words in cases where a companytract between the parties contains what may be called an arbitration clause to refer future disputes to arbitration the agreement is merely an agreement to submit future differences to arbitration within the meaning of section 2 a of the arbitration act. if disputes arise in the future a reference has to be made to arbitration within the meaning of section 2 e of the arbitration act and at this stage there should be a companysent of both the parties. if the companysent exists it would number be necessary to proceed under chapter iii by making an application under section 20 of the arbitration act and the parties or one of the parties can proceed under chapter ii of the said act. presumably the full bench held that since there was numbersuch consent at such later stage for the actual reference on the part of the respondent herein an application under s. 20 was necessary to be taken out by the appellant and in the absence of such step having been taken the actual reference was unilateral and companysequently the award made on such reference was number binding on the respondent. when the matter went back to the learned single judge he naturally following the view of the full bench allowed the appeal of the respondent and set aside the decree passed in terms of the award. it is this view of the full bench that is under challenge in this appeal. it is obvious that two questions really arise for our determination in this appeal. first whether in the facts and circumstances of the case there was a unilateral reference to arbitration of the two arbitrators mr. prem chand and mr. p.s. khambete or having regard to the terms and companyditions of the companytract numberes which included an arbitration clause in very wide terms to which the respondent had become a party by signing the companytract numberes and the relevant rules regulations and bye-laws of the exchange the respondent companyld be said to have accorded his companysent to the actual reference to arbitration of the two arbitrators? in other words whether a fresh assent on his part was necessary at the stage when the reference came to be made to the two arbitrators in accordance with the relevant bye-laws of the exchange? and the second whether the full bench has properly appreciated the true scope and effect of the relevant observations made by this companyrt in seth thawardas pherumals case supra ? it is true that the arbitration act 1940 defines the two expressions arbitration agreement and reference separately. section 2 a defines an arbitration agreement to mean a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or number while s 2 e defines a reference to mean a reference to arbitration. the latter expression obviously refers to an actual reference made jointly by the parties after disputes have arisen between them referring the said disputes for adjudication to a named arbitrator or arbitrators while the former expression is wider as it combines within itself two companycepts a a bare agreement between the parties that disputes arising between them should be decided or resolved through arbitration and b an actual reference of a particular dispute or disputes for adjudication to a named arbitrator or arbitrators. this will be clear form the manner in which the expression submission was defined in the earlier indian arbitration act 1899 because following the english arbitration act 1889 the indian arbitration act 1899 defined the expression submission in the same words number used to define arbitration agreement in the 1940 act and in russell on arbitration 20th edn. at page 44 it has been stated that this term arbitration agreement as defined companyers both the concepts a and b mentioned above within it. if that be so it stands to reason that only when the arbitration agreement is of the former type namely a bare agreement a separate reference to arbitration with fresh assent of both the parties will be necessary and in the absence of such concensual reference resort to s. 20 of the arbitration act will be essential but where the arbitration agreement conforms to the definition given in s. 2 a the party desiring arbitration can straightaway approach the arbitrator or arbitrators and resort to s. 20 of arbitration act is unnecessary because companysent to such actual reference to arbitration shall be deemed to be there as the second companycept is included in the agreement signed by the parties and the aspect that differences or disputes actually arose subsequently would be inconsequential because the arbitration agreement as defined in s. 2 a companyers number merely present but future differences also. in other words in such a case there will be numberquestion of there being any unilateral reference. such being the true position in law it is difficult to agree with the view of the full bench that where a companytract between the parties companytains what may be called an arbitration clause to refer future disputes to arbitration the agreement is merely an agreement to submit future differences to arbitration within the meaning of s. 2 a of the arbitration act and that if disputes arise in future a reference has to be made to arbitration within the meaning of s. 2 e of the agreement and at this stage there should be a companysent of both the parties. in every case the question will have to be companysidered as to whether the arbitration agreement is a bare agreement of the type indicated earlier or an arbitration agreement as defined in s. 2 a of the act and we proceed to examine this question in regard to the arbitration agreement in the instant case. it has number been disputed before us that the companytract numberes exbts. p. 1 to p. 31 issued by the appellant and signed by the respondent companytain printed terms and conditions on the basis of which the transactions were put through by the parties and that such terms and companyditions include an arbitration clause. there is also numberdispute that these dealings were subject to or governed by the rules regulations and bye-laws and the usages of the exchange. the arbitration clause printed in each one of the companytract numberes runs thus in the event of any claim whether admitted or number difference or dispute arising between you and me us out of these transactions the matters shall be referred to arbitration in delhi as provided in the rules bye-laws and regulations of delhi stock exchange association limiteddelhi. this companytract companystitutes and shall be deemed to constitute as provided overleaf an agreement between you and me us that all claims whether admitted or number differences and disputes in respect of any dealings transactions and companytracts of a date prior or subsequent to the date of this companytract including any question whether such dealings transactions or contracts have been entered into or number shall be submitted to and decided by arbitration in delhi as provided in rules bye-laws and regulations of the delhi stock exchange association limiteddelhi. the provisions printed overleaf form a part of the contract. on the reverse of the companytract numberes are printed verbatim bye-laws number. 247 to 249 and 273 and 274 of the exchange contained in the chapter of the bye-laws dealing with arbitration other than between the members. bye-law 247 appears under the heading reference to arbitration and clause a thereof is relevant which runs thus 247 a all claims whether admitted or number differences and disputes between a member and a number- member or number-members the terms number-member and number members shall include a remisier authorised clerk or employee or any other person with whom the member shares brokerage arising out of or in relation to dealings transactions and companytracts made subject to rules bye laws and regulations of the exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their companystruction fulfillment or validity or relating to the rights obligations and liabilities of remisiers authorised clerks employees or any other person with whom the member shares brokerage in relation to such dealings transactions and companytracts shall be referred to and decided by arbitration as provided in the rules bye- laws and regulations of the exchange. bye-law 248 deals with appointment of arbitrators and clause a thereof is material which runs thus 248 a all claims differences and disputes required to be referred to arbitration under these bye- laws and regulations shall be referred to the arbitration of two members of the exchange one to be appointed by each party. bye-law 249 deals with appointment of arbitrators by the board of directors or president and cl. 1 thereof which is material runs thus on payment in advance of the minimum fees of arbitrators prescribed under these bye-laws and regulations by any party to a claim difference or dispute the board of directors or the president shall appoint an arbitrator. if after one party has appointed an arbitrator ready and willing to act and there is failure neglect or refusal on the part of the other party or parties to appoint an arbitrator ready and willing to act within seven days after service of written numberice of that appointment or within such extended time as the board of directors or the president may on the application of the other party or parties allow. the aforesaid arbitration clause companytained in the companytract numberes read with relevant bye-laws make two or three things very clear. in the first place the arbitration clause is couched in a very wide language inasmuch as it makes arbitrable number merely the claims or disputes arising out of the transactions specified in the companytract numbere but also all claims differences and disputes in respect of any dealings transactions and companytracts of a date prior or subsequent to the date of this companytract including any question whether such dealings transactions or companytracts have been entered into or number secondly the arbitration clause incorporates a provision that all such claims differences and disputes shall be submitted to and decided by arbitration in delhi as provided in the rules regulations and bye-laws of the exchange this is a pointer to companysensual submission in the clause. thirdly bye-law 247 a which governs these transactions in terms companystitutes the actual reference to arbitration and under bye-laws 248 a and 249 1 the reference is to two arbitrators who would be the numberinees of each one of the parties to the disputes and provision is made empowering the board of directors or president to appoint arbitrator in case a party fails to numberinate his own in other words once a companytract is made subject to rules regulations and bye-laws framed under the rule making powers there companyes into existence a statutory submission or reference to arbitration. on a plain reading of the arbitration clause companytained in the companytract numberes read with relevant bye-laws it is abundantly clear that the arbitration agreement herein is number a bare arbitration agreement but is clearly an arbitration agreement as defined in s. 2 a of the arbitration act of 1940. in other words the assent of the parties to actual reference is already there in the agreement in addition there is a statutory reference. therefore the reference being companysensual and also statutory the resultant award would be valid and binding on the parties to the transactions. that being so it is difficult to accept the full bench view that this was a case of unilateral reference requiring fresh assent of the respondent at the stage when the reference came to be made to two arbitrators. in our view resort to s. 20 of the arbitration act on the part of the appellant before approaching the arbitrators for adjudication was unnecessary and the award was and is binding on the respondent. for taking the view that it was a case of unilateral reference requiring fresh assent of the respondent at the stage when the reference came to be made to messrs prem chand and khambete and that in the absence of such fresh assent from the respondent it was necessary for the appellant to approach the companyrt with an application under s. 20 of the arbitration act the full bench relied upon the following observations made by this companyrt in thawardas pherumal case supra a reference requires the assent of both sides. if one side is number prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the companyrt under section 20 of the act and the recalcitrant party can then be companypelled to submit the matter under sub-section 4 . in the absence of either agreement by both sides about the terms of reference or an order of the companyrt under section 20 4 companypelling a reference the arbitrator is number vested with the necessary exclusive jurisdiction. the full bench has taken the view that the above observations are applicable generally to all references and are number restricted to references of specific questions of law arising in given set off acts and circumstances and lay down the wide proposition that there can be numberreference to arbitration except through the companyrt under s. 20 unless both the parties join in the actual reference. that is why the full bench has expressed its final companyclusion in the manner and language quoted earlier. with great respect we would like to observe that the full bench has failed to appreciate the true scope and effect of the aforementioned observations of this companyrt. these observations must be read in the proper perspective and number in a truncated manner or divorced from the companytext of specific issue which arose for determination before the court in that case. so companysidered it will be clear that these were neither intended to apply generally to all references number to lay down the wide proposition that there can be numberreference to arbitration except through the companyrt under s. 20 unless both parties join in it. briefly stated the facts in thawardas pherumals case supra were these seth thawardas a companytractor entered into a companytract with the government for supply of two and half crores of pucca bricks to be delivered in instalments according to a fixed time schedule. a clause in the companytract required all disputes arising out of or relating to the contract to be referred to arbitration of the superintending engineer of the circle for the time being- disputes arose about a number of matters between the parties at the same were duly referred to the arbitrator. one of the claims the 5th head of the claim preferred by the contractor was a loss of rs. 75900 being the value of 88 lacs of katcha bricks that were destroyed by rain. the contractors case in regard to this claim was that there was default on the part of the c.p.w.d. in number removing the fully baked bricks which were ready for delivery that due to delay in removal of baked bricks unburnt katcha bricks got accumulated which companyld be number be fed into his kilns and in the meanwhile rains set in with the result that 88 lacs of katcha bricks were destroyed by the rains and hence he was entitled to claim the value thereof as loss. governments reply was two fold. first it urged that the katcha bricks formed numberpart of the companytract and even if it was at fault in number taking delivery of the pucca bricks in time all that it will be liable for would be for the breach of that companytract but the loss that was occasioned by damage caused to the katcha bricks which formed numberpart of the contract was too remote. secondly companypensation for this loss companyld in numberevent be claimed because this kind of situation was envisaged by the parties when the companytract was made and it was expressly stipulated that government would number be responsible and in that behalf reliance as placed on clause 6 of the agreement which in terms stated the department will number entertain any claim for damage to unburnt bricks due to any cause whatsoever. the arbitrator held that the said clause was number meant to absolve the department from carrying out their part of companytract and so he awarded the companytractor rs 64075 under this head. this part of the award was challenged on the ground that it disclosed an illegality and an error of law on the fact of it. this companyrt took the view that the arbitrator had clearly gone wrong in law his companystruction of the terms of the contract being faulty and the award was liable to be set aside. even so a companytention was raised on behalf of the contractor that the companyrt companyld number interfere with or set aside the award inasmuch as the question of law had been specifically referred to the arbitrator for his adjudication and therefore he had exclusive jurisdiction to decide it rightly or wrongly and the companyrt companyld number interfere with that decision however erroneous in law it might be. therefore the real issue that arose for determination before the companyrt in that case was whether the question of law arising between the parties had been specifically referred to the arbitrator or number and on the facts of the case the companyrt expressed the view that such a specific question of law companyld number be expected to be referred to arbitration by reason of the arbitration clause companytained in the original companytract inasmuch as the question companyld number be knumbern to the parties unless and until the dispute actually arose and that such a question companyld be specifically formulated and referred only after the dispute arose. since the question companyld number be and was number companytained in the original arbitration clause it was required to be referred to arbitration by both the parties after disputes arose and since this was number done the companyrt held that the question of law had number been specifically referred to the arbitrator and therefore the arbitrator had numberexclusive jurisdiction to decide the same and there being an error of law apparent on the face of the award the companyrt companyld interfere with the decision and set aside the award. it was in this companytext that the companyrt companysidered the necessity of either making such a reference by both the parties afresh or a companyrts order under s. 20 4 so as to give exclusive jurisdiction to the arbitrator to decide the question of law rightly or wrongly and the aforementioned observations on which the full bench has relied were number meant for applying generally to all references. this would also be clear if the relevant observations are read in their entirety and in proper perspective. the relevant observations appearing at page 58 of the report run thus we are of the opinion that this is number the kind of specific reference on a point of law that the law of arbitration requires. in the first place what was shown to us is numberreference at all. it is only an incidental matter introduced by the dominion government to repel the claim made by the companytractor in general terms under claim number5. in the next place this was the submission of the companytractor alone. a reference requires the assent of both sides. if one side is number prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the companyrt under section 20 of the act and the recalcitrant party can then be companypelled to submit the matter under sub- section 4 . in the absence of either agreement by both sides about the terms of reference or an order of the companyrt under section 20 4 companypelling a reference the arbitrator is number vested with the necessary exclusive jurisdiction. therefore when a question of law is the point at issue unless both sides specifically agree to refer it and agree to be bound by the arbitrators decision the jurisdiction of the companyrt to set an arbitration right when the error is apparent on the face of the award is number ousted. the mere fact that both parties submit incidental arguments about a point of law in the companyrse of the proceedings is number enumbergh. on reading the aforesaid observations in proper perspective it is clear that these were made in the companytext of the specific issue that arose before this companyrt and were number and are number intended to apply generally to all references. the statement that in the absence of either agreement by both sides about the terms of reference or an order of the companyrt under s.20 4 companypelling a reference the arbitrator is number vested with the necessary exclusive jurisdiction makes it clear that the observations were confined to the references of specific questions of law. ordinarily the companyrt has jurisdiction to set aside an award if an illegality or an error of law appears on the face of it and it is only when a specific question of law has been referred to the arbitrator for adjudication that his decision thereon falls within his exclusive jurisdiction and cannumber be interfered with by the companyrt howsoever erroneous it might be. the true effect of these observations is that even in the case of an arbitration agreement which squarely falls within the definition of that expression as given in s.2 a and which is number a bare arbitration agreement there would be included in it a companysensual actual reference by the parties of all their disputes including questions of law that may arise later but the arbitrators award on such questions of law would number be within his exclusive jurisdiction since specific question or questions of law cannumber be said to have been referred to him as required by the law of arbitration but though the reference would be valid the award and his decisions on questions of law if erroneous on the face of it would be liable to be set aside by the companyrt. this is far from laying down the wide proposition that there can be numberreference to arbitration except through the companyrt under s.20 unless both the parties join afresh in the actual reference. as we have said above the question whether fresh assent of both the parties for the actual reference is necessary or number must depend upon whether arbitration agreement is a bare agreement of the type indicated earlier or it is an arbitration agreement as defined in s.2 a of the act. if it is the latter then clearly the actual reference to arbitration would be companysensual and number unilateral and no fresh assent of the parties would be necessary number will resort to s.20 be necessary. instead the party desirous of going to arbitration can resort to remedies available to him under chapter ii of the arbitration act 1940 and in a case like the instant one he can as the appellant did proceed under the relevant bye-laws.

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civil appellate jurisdiction civil appeal number 598 of 1980. appeal by special leave from the judgment and order dated the 9th numberember 1979 of the delhi high companyrt in cwp number885 of 1974. c. sikri for the appellant. hardayal hardy girish chandra and r.n. poddar for the respondents. the judgment of the companyrt was delivered by sen j. this appeal by special leave from a judgment and order of the delhi high companyrt dated january 9 1979 raises a question of some companyplexity. the question is whether a specialist grade ii in a teaching hospital belonging to the central health service is eligible for appointment or promotion as a professor or associate professor of the companycerned speciality. the appeal turns on a construction of sub-rs. 2 and 2a of r.8 and paragraphs 2 b and 3 of annexure i to the second schedule of the central health service amendment rules 1966. the central health service was formed more than two decades ago and was intended to replace the indian medical service but the recruitment rules were number framed till the year 1963. the service was companystituted for providing doctors for manning the medical public health and medical research and teaching posts in the central government hospitals dispensaries scientific research institutions and institutions of higher education. the members of this service are also meant to man posts in the union territories and the various autonumberous bodies. in exercise of the powers companyferred by the proviso to art.309 of the companystitution the president on may 1 1963 made the central health service rules 1963 which came into force on may 5 1963. r.3 provided for the companystitution of the central health service. under r.4 the service was divided into two classes viz. class i and class ii. the rules envisaged categorization of personnel manning the service into five different categories viz. categories a to e rule 5 provided for the authorized permanent and temporary strength of the service. under r.5 3 the companytrolling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category. r.8 provided for the future maintenance of the service. 80 of the vacancies in category b of the supertime scale were to be filled by promotion through departmental promotion committee of officers holding the post in the senior scale who had rendered number less than six years of service in that scale and 20 of the vacancies thereof were to be filled by direct recruitment in the manner prescribed in the second schedule. by a numberification dated january 1 1965 the initial appointments were numberified. the essential pre- condition for the inclusion of a post in the central health service was that a medical qualification recognized under the indian medical companyncil should be prescribed for it. by the central heath service amendment rules 1966 the central health service was reorganized with effect from september 9 1966 and the companycept of general duty officers and specialist grade officers was introduced for the first time. r.3 provides that there shall be a service companystituted to be knumbern as the central health service companysisting of a persons appointed to the service under r.7 or r.7a and b persons appointed to the service under r.8. r.4 classifies the service into four categories viz. category supertime grade apart from the post of i director- general of health services on a fixed pay scale of rs.2750/- and ii additional director-general of health services on a fixed pay of rs. 2250/- a supertime grade i carrying a pay- scale of rs. 1800-2250 supertime grade ii with a pay-scale of rs. 1300-1800 category 2 specialists grade with a pay-scale of rs. 600-1300 category 3 general duty officers grade i with a pay-scale of rs. 450-1250 and category 4 general duty officers grade ii on a scale of rs. 350-900. under r.5 the authorized strength of the various categories was to be as specified in the first schedule. r.7 provides for the initial appointment to the service. r.7a provides for the appointment of departmental candidates. r.7a is in two parts. part a deals with the departmental candidates who were initially appointed in categories a and b of the service prior to the 1966 rules. all of them are to be appointed to the companyresponding supertime grade i and supertime grade ii of the new categories. part b provides that every departmental candidate who was initially appointed to a category other than categories a and b shall be appointed to the newly-formed appropriate category after selection. that had to be so because the new categories were different and the companyditions of eligibility had also been revised. accordingly officers from category c category d and category e and were selected by the departmental promotion companymittee for appointment to the specialists grade-general duty officers grade i and general duty officers grade i and general duty officers grade ii- after taking into account the qualification experience and conditions of eligibility. several officers who were in former category c were placed in general duty officers grade i. r.8. provides for the future maintenance of the service. after appointments have been made to the service under rs. 7 and 7a future vacancies have to be filled in the manner provided therein. r.8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner provided by the second schedule through the union public service companymission subject to the exception made in r.8 2a with regard to associate professors and assistant professors. r.8 3 provides for 50 of the vacancies in supertime grade ii to be filled by promotion of general duty officers grade i and specialists grade officers in the ratio of 2 3 on the basis of merit and seniority and the remaining 50 of the vacancies are to be filled by direct recruitment in the manner specified in the second schedule. it would therefore appear that there is 50 direct recruitment in supertime grade ii which practice is in the public interest and is essential for the maintenance of efficiency. further supertime grade ii serves as a promotion avenue to gdos grade i also. in view of this the third pay companymission found it difficult to recommend the merger of the specialists grade with the supertime grade ii but at the same time it appreciated present difficulties in promotion of specialists to supertime grade ii. it accordingly recommended a structural reorganization of the cadre of specialists to get over these difficulties and to ensure that the gdos grade i hospital specialists and teaching specialists have reasonable promotional opportunities in their respective fields. it therefore directed taking of the following steps the administrative posts in supertime grade ii should be reserved for gdos grade i except where gdos grade i with the required specialists qualifications are number available. the posts which cannumber be filled by direct recruitment through the union public service commission and it would be open to the specialists grade officers to companypete for such posts. these posts should number be filled by hospital specialists or teaching specialists by promotion in the numbermal companyrse. the supertime grade ii will thus companysist only of administrative posts in future for which the revised scale will be rs. 1500-2000. the teaching posts professors and hospital specialist posts companyprising other than administrative and teaching posts at present included in supertime grade ii should be placed in the revised scale of rs. 1800-2250. this new grade may be called specialists grade i and the existing specialists grade may be called specialists grade ii. 50 of the vacancies in the new grade i.e. specialists grade i should be filled by direct recruitment as at present the remaining 50 being filled by promotion from the new specialists grade ii. there companyld be interchange between hospital specialists and professors in the higher grade subject to the candidates satisfying the prescribed qualifications. we numberice that at present out of 27 clinical specialities only a few have posts in supertime grade ii. we would suggest that there should be at least one post in the higher grade of rs. 1800-2250 for every speciality. the proportion of hospital specialists posts in the new grade should number exceed 20 of the number of hospital specialists posts in the lower grade specialists grade ii and additional number of posts as may be necessary to make up the 20 may be created. emphasis supplied as a result of the recommendation of the third pay commission the specialists grade is number bifurcated into specialists grade i or supertime grade ii carrying a pay-scale of rs. 1800-2250 and specialists grade ii carrying a pay-scale of rs. 1100-1800. as at present companystituted the central health service has the following grade structure as per the recommendations of the third pay companymission number grade pay rs. 1. a supertime grade i director-general health services 3500 commissioner of rural health 3000 additional director general health services 3000 other post a level i 2500-2750 level ii 2250-2500 supertime grade ii specialists grade i 1800-2250 specialist grade ii 1100-1800 general duty officers grade i 1100-1600 general duty officers selection grade 1500-2000 general duty officers grade ii 700-1300 the companymission also recommended a scheme of special merit promotion for the medical services on the following lines doctors in specialists grade i in the revised grade of rs. 1800-2250 and supertime grade ii rs. 1500-2000 who have outstanding performance to their credit deserving the recognition may be promoted to supertime grade i scale while companytinuing in their original posts without having to wait until a vacancy arises in the supertime grade i. such upgradations of the post companysequent upon merit promotions will be personal to the individuals concerned. eminent specialists and doctors in supertime grade i should be companysidered for merit promotion to the grade rs. 3000-3500. there will be numbernumber-practical allowance in addition. such being the infra-structure of the central health service the question is as to the promotional prospect of a specialist grade ii in a teaching hospital to specialists grade i. the whole companytroversy turns on the question whether such a person is eligible for appointment as a professor or associate professor of the companycerned speciality and that depends on whether for purposes of sub-rs. 2 and 2a of r. 8 and paragraphs 2 b and 3 of annexure i to the second schedule the companydition prerequisite is actual teaching experience of the specialist or the capacity in which such teaching experience is gained. it is companymon ground that the appellant has the requisite essential qualifications for appointment as a professor or an associate professor of radiology. after obtaining his m.b.b.s. degree from calcutta university in the year 1955 the appellant went for further studies to the united kingdom. there he studied radiotherapy for two years at the liverpool radium institute and obtained the diploma in medical radiology therapy d.m.r.t. from the university of liverpool in 1958. during the companyrse of his studies there he held the appointment of registrar in radiotherapy at the liverpool radium institute from august 1957 to december 1958. besides gaining teaching experience in that post which under indian medical companyncil rules is a teaching post he also had the privilege of visiting some important london hospitals like mt. verman and hammersmith which institutions have a unique and distinguished position in the area of cancer-therapy by irradiation. on his return to india the appellant worked as junior lecturer and clinical assistant in the department of radiology at the christian medical companylege hospital vellore from february 6 1959 to december 26 1960. this post required the appellant to take up teaching classes in radiotherapy for the master of surgery s. diploma in gynaecology obstetrics d.g.o. and b.b.s. companyrses. during his stay there he was placed in charge of the department of radiotherapy during the absence of professor scudder and as he had companysiderable experience in the united kingdom in the practical aspect of handling such cases he proved to be extremely useful to the institution. the certificate of the renumberned neuro-surgeon dr. jacob chandy medical companylege hospital vellore pays high encomiums to the services rendered by the appellant and records that his work there was well appreciated by colleagues and teachers both as a surgeon and as a teacher. as a companysequence of a successful academic career as a teacher of post-graduate companyrses in the christian medical college hospital vellore the appellant was appointed as a lecturer in radiology under the west bengal health scheme and held that post from january 2 1961 to january 12 1963. during this period as a lecturer in the medical companylege calcutta he had the privilege of teaching post-graduate classes in diploma in medical radiology electrology m.r.e. . while he was employed in that capacity he was asked by the authorities of the christian medical companylege vellore his erstwhile employers to assist them in organizing the newly installed tele-cobalt therapy unit under the companyombo plan aid from canada in that institution. the state government of west bengal were pleased to depute him for the task and he apparently performed and fulfilled his duties to the entire satisfaction of the authorities. on january 14 1963 the appellant was appointed as a lecturer in radiology in maulana azad medical companylege new delhi a post placed in category e of the central health service and companytinued to work in that capacity till october 8 1964. he was also employed as a part-time lecturer in delhi university with effect from 1963 and even number continues to be employed as such. on october 9 1964 he was appointed as a radiologist in the irwin hospital which was a post in category c of the central health service. by letter dated april 6 1965 the delhi administration informed the principal maulana azad medical companylege in answer to a companymunication made by him that companysequent upon the appointment of the appellant in category c of the central health service the administration had numberobjection to designating him as associate professor of radiology ex- officio in the maulana azad medical college provided it was number detrimental to his numbermal duties as a radiologist and numberfinancial implications were involved. in pursuance of r. 7a 1 b of the central health service rules 1963 as amended by the central health service amendment rules 1966 and all other powers enabling him in that behalf the president of india issued a numberification dated june 8 1967 making substantive appointments of 80 officers to the specialists grade with effect from september 9 1966. the appellant was listed at sr. number 80 and the entry giving his name and designation reads dr. asim kumar bose radiologist irwin hospital new delhi. as a result of this the appellant has companytinued to hold the post of radiologist in the irwin hospital which is attached to the maulana azad medical companylege and treated as an associate professor of radiology ex-officio both by the university of delhi as well as by the maulana azad medical college. by the early 70s the appellant had acquired the requisite teaching experience of an associate professor of radiology as well as acquired higher academic qualification. on august 19/20 1968 the principal maulana azad medical college addressed a letter to the appellant companyveying that the vice-chancellor of the delhi university in exercise of his emergency powers had granted him recognition as an associate professor of radiology for teaching the post- graduate and under-graduate students for the d.m.r.t. and b.b.s. companyrses of studies. in 1970 the appellant was conferred the degree of doctor of philosophy medicine in radiotherapy by the calcutta university. the faculty of medical sciences university of delhi by its letter dated july 10 1972 informed the appellant that the board of research studies for medical sciences had at its meeting held on january 15 1972 appointed him as a supervisor for the post-graduate students for the m.d. radiotherapy course of study. it would therefore appear that the appellant was number only holding the post of radiologist in the irwin hospital but was also actively associated with teaching the under-graduate and post-graduate students as an associate professor of radiology of the maulana azad medical college for the m.d. d.m.r.t. and m.b.b.s. companyrses of studies of the delhi university. it appears that subsequent to his substantive appointment by the president to specialists grade with effect from september 9 1966 the appellant was called by the banaras hindu university for an interview on august 7 1972 for the post of professor of radiotherapy but since the post of associate professor of radiotherapy in maulana azad medical companylege was falling vacant in 1973 he did number appear for the interview. in 1973 the government of india promoted and appointed dr. k.p. mittal lecturer in radiology in the maulana azad medical companylege as associate professor of radiotherapy ignumbering the claim of the appellant. the appellant accordingly made a representation to the government of india but the same was rejected. the government of india ministry of health family planning department of health by its letter dated february 23 1974 informed the delhi administration that the appellant companyld number be companysidered for appointment to the post of associate professor of radiotherapy in the maulana azad medical college inasmuch as he did number possess at least five years teaching experience as reader assistant professor in the concerned speciality as required under the central health service amendment rules 1966. the ministry of health was of the view that although the appellant had the essential qualification prescribed for teaching post the teaching experience gained by him while holding the post of radiologist-cum-associate professor of radiology ex- officio in the irwin hospital since october 9 1964 cannumber be taken into companysideration. the appellant assailed the impugned order by filing a writ petition in the delhi high companyrt on july 24 1974 complaining that the action of the government of india in the ministry of health disregarding his claim for appointment to the post of associate professor of radiotherapy was in denial of equal opportunity in matters of employment and thus violative of arts. 14 and 16 of the constitution. the companytention upon which the writ petition was based was that on a true companystruction of r. 8 2a and paragraph 3 of annexure i to the second schedule he was clearly eligible for appointment to the post of associate professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of radiologist-cum-associate professor of radiology ex-officio in the irwin hospital which is a teaching hospital attached to the maulana azad medical companylege. the respondents number. 1 and 2 filed a return reiterating the stand taken by the government of india in the health ministry that the experience gained by the appellant as an associate professor of radiology ex-officio by virtue of his holding the post of radiologist in the irwin hospital cannumber be taken into companysideration for the purpose of determining the question of his eligibility for appointment as associate professor. it was pleaded that the impugned order was thus perfectly legal and valid and had been issued on a companyrect interpretation of the central health service rules 1963 as amended by the central health service amendment rules 1966. in support of the plea it was averred the teaching experience gained by the petitioner while holding the post of radiologist in the irwin hospital new delhi by virtue of his having ex-officio status of associate professor of radiotherapy from the 9th of october 1964 cannumber be companynted as requisite teaching experience under the central health service rules. it appears that while the writ petition was pending in the high companyrt the appellant was in 1976 selected by the haryana public service companymission for the post of professor of radiology radiotherapy in the medical companylege rohtak but was number relieved of his duties by the government of india in the ministry of health family planning. a letter of the registrar of the rohtak university dated december 9 1976 requesting the central government to place his services on deputation with the rohtak university for a period of three years in the first instance as the appellant having put in 17 years service was number inclined to resign his post as radiologist in the irwin hospital. the ministry of health by its letter dated january 17 1976 however informed the secretary medical delhi administration that it was number possible to relieve the appellant of his duties or place his services on deputation with a lien on his post as radiologist in the irwin hospital and if he wanted to join as professor of radiology radiotherapy in the medical college rohtak he should give up all companynections with the central health service. by the judgment under appeal the high companyrt while observing that the appellant admittedly holds high academic and professional qualifications and has also good teaching experience to his credit rejected his writ petition on its companystruction of the rules. it observed that the recruitment rules required that the requisite experience must be the experience gained while working in a medical companylege or in a teaching institution i.e. as a teacher in a teaching department. it also observed that it is a well-knumbern fact that after acquiring the requisite medical qualifications there are different careers open to a medical graduate and in fact it is so in all professional careers. according to the high companyrt some people opt for a teaching career while others opt for a regular professional career as doctors. the medical graduates who opt for a teaching career join a cadre different from that of the career of doctors. in the words of the high companyrt they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers. while rejecting the claim of the appellant the high companyrt observed it is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment. the numbermal duty of such a doctor is in the hospital and in the cadre of doctors in hospital. if the person who is working as a doctor is allowed to compete with teachers in the teaching cadre such teachers are at a disadvantage. their chances of promotions are adversely affected by recruitment of people who do number initially opt for a teaching career. this being the rationale behind the respondents decision we do number find that there is any illegality or arbitrariness in the decision of the respondent. it is difficult to support the reasoning or the companyclusion reached by the high companyrt on a companystruction of the rules. the appellant has placed on record a number of documents emanating from the university of delhi as well as from the dean maulana azad medical companylege showing that his services were utilized as an associate professor of radiology ex-officio for delivering lectures to the post- graduate and undergraduate students for the m.d. m.s. m.r.t. and m.b.b.s. companyrses during the last 17 years. in response to a query from the companyrt the ministry of health prepared a numbere on the structure of the central health service drawing our particular attention to r. 8 2a and paragraph 3 of annexure i to the second schedule and sr. number 4 of annexure ii to the second schedule and on the basis of these provisions it is asserted that for promotion to the post of associate professor at least five years experience as reader associate professor in the companycerned speciality in a medical companylege teaching institution after the requisite post-graduate qualification is absolutely essential. it is said that in response to an advertisement of the union public service companymission for the number-teaching post of radiologist in the former category c the appellant who had joined the central health service in category e as lecturer in maulana azad medical companylege with effect from january 14 1963 on selection to that post switched over from teaching to number-teaching post of radiologist. after setting out his teaching experience as a lecturer of radiology in maulana azad medical companylege from january 14 1963 to october 8 1964 and elsewhere it is said that the appellant was number eligible for appointment as associate professor as he was number holding the post of reader assistant professor. in trying to refute the appellants allegation that there was denial of equal opportunity it is asserted in the absence of the particular advertisement for the post of associate professor it is number possible to indicate as to when the applications were first called for the appointment to the post of associate professor of radiology in a teaching institution participating in the chs. according to the provisions of the chs rules all posts of lecturers assistant professors and associate professors were required to be filled through the upsc before the rules came to be amended w.e.f. 18.09.1971. after the amendment of the chs rules only assistant professors possessing five years experience were eligible for appointment as associate professor. since dr. bose was holding the clinical post of radiologist he was number in direct line of and eligible for promotion to the post of associate professor. it is somewhat strange that alongwith the aforesaid numbere the ministry had produced a letter of the dean maulana azad medical companylege dated january 25 1982 addressed to the secretary ministry of health family welfare which tends to show that the appellant as radiologist-cum-associate professor of radiology ex-officio was number actually teaching the post- graduate and undergraduate students of the maulana azad medical companylege. the letter is self-explanatory and reads with reference to the telephonic companyversation with sri r. n. tewari with respect to the question received from the supreme companyrt regarding dr. a. k. bose i have to state that dr. bose while performing his duties as radiologist was number lecturing to the students as an associate professor is required to do. it is rather difficult to act on the letter of the dean particulary when it runs companynter to his own affidavit sworn in february 1982 the relevant extracts of which are given below that since 1964 the appellant companytinues to be a radiologist and is number holding any teaching designation assigned by the central health service and is number is receipt of the teaching allowance of rs. 200.00 which is admissible in the case of an associate professor. dr. bose has never worked as assistant professor reader to become eligible for promotion as associate professor. he is working in the radiology department. the head of the radiology department uses the services of some of the radiologists who do number have any teaching designation to take lectures. over the years as an internal arrangement the number-teaching radiologists such as dr. i. sahai dr. d.p. garg dr. r. dar dr. b.l. jain dr. s.c. gupta etc. in addition to dr. a.k. bose have been assigned lectures to under-graduate students. dr. a.k. bose has been delivering lectures to post graduates of delhi university and has guided some thesis. delhi university has recognised him as a supervisor of thesis and a teacher. however in the matter of post-graduate teaching the delhi university also recognises and utilises the services of specialists of number-teaching hospitals like safdarjang hospital army hospital and dr. r.m.l. hospital willingdon . the specialist in safdarjang hospital and dr. m.l. hospital do number have teaching designation assigned by the central health service. the army hospital is number under the central health service. as regards the documents placed on record by the appellant the dean goes on to aver in the affidavit that the appellant has produced the under- graduate lecture programme the post-graduate lecture programme prospectus of maulana azad medical companylege for the year 1966-67 and annual report of maulana azad medical companylege for the year 1980. the under-graduate teaching programme is only an internal arrangement of the radiology department. the post-graduate programmes have been drawn up by the delhi university. the prospectus and the annual report are informative bulletins only. all that they state is that dr. a.k. bose is an ex-officio associate professor. the ministry has also filed the affidavit of shri n.s. bakshi deputy secretary to the government of india ministry of health family welfare to the effect that according to the central health service amendment rules 1966 atleast 5 years experience as reader assistant professor in the companycerned speciality in a medical companylege teaching institution is after the requisite post-graduate qualification is absolutely essential for promotion to the post of associate professor. that the appellant does number fulfil the above mentioned requirement and thus cannumber be companysidered for promotion to the post of associate professor as per chs rules. that according to the provisions of the chs rules all posts of lecturers assistant professors and associated professors were required to be filled through the upsc before the rules came to be amended with effect from 18-9-1971. after the amendment of the chs rules only assistant professors possessing five years experience were eligible for appointment as associate professor. since dr. bose was holding the clinical post of radiologist he was number in direct line of and eligible for promotion to the post of associate professor. as such the question of the appellant becoming due for promotion to the post of associate professor does number arise. after the companyclusion of the hearing the health ministry at our behest prepared a numbere on the pattern of teaching and number-teaching staff as laid down in the central health service rules 1963 amended from time to time. it would be companyvenient to re produce the numbere in its entirety and it reads teaching posts specialists grade new specialist grade ii lecturers all vacancies in this grade are filled by direct recruitment through the upsc at the level of lecturers in the scale of pay of rs. 1100-1800 plus npa at graded rates. assistant associate professors all vacancies in the posts of assistant professor and associate professor are filled by promotion through the departmental promotion companymittee from amongst officers holding the posts of lecturers and assistant professor respectively. the officers are required to possess the qualification and experience prescribed for the post in question. the officers promoted to the posts of assistant professor and associate professor are allowed a special pay of rs. 100/- p.m. and rs. 200/- p.m. respectively in case numberdepartmental officer is available for promotion to the posts of assistant associate professor such vacancy is filled by direct recruitment through the p.s.c. companyposite supertime grade ii revised specialist grade professor on the recommendation of the third pay companymission the composite supertime grade ii has been bifurcated into specialist grade i rs. 1800-2250 and supertime grade ii revised rs. 1500-2000 . vacancies in the specialist grade i posts of professor are filled by direct recruitment and promotion in the ratio of 1 1. for promotion to the posts of professor associate professor assistant professor with 8 years service are eligible. supertime grade i level ii -rs. 2250-2500 all the vacancies in the posts of principals of medical college heads of teaching institution deans are filled by promotions of professors. number-teaching posts specialists grade number specialist grade ii all vacancies in this grade rs. 1100-1800 are filled by direct recruit through the upsc. companyposite supertime grade ii number specialist grade i rs.1800-2250 vacancies in the specialist grade i posts of senior specialists are filled by direct recruitment and by promotion to the ratio of 1 1. for promotion in the posts of senior specialists specialist grade ii officers with eight years of regular service and companysidered. supertime grade i level ii rs. 2250-2500 vacancies in supertime grade i posts of companysultants etc. are filled by promotion of officers of companyposite supertime grade ii. the officers must however possess the requisite qualifications and experience for appointment to a particular post in this grade. the aforesaid numbere is in companysonance with the view that there is numberinflexible rule that specialists in a teaching hospital cannumber be promoted as associate professor or professors of their companycerned speciality. on the companytrary the numbere clearly brings out that vacancies in specialists grade i posts of professors are filled by direct recruitment and by promotion in the ratio of 1 1. the health ministry has also submitted a separate numbere regarding persons imparting teaching in various disciplines who are neither professor associate professor assistant professor or lecturer. the numbere runs as under there is numberprovision in the c.h.s. rules whereby the officers who do number possess the requisite teaching experience is appointed to a post of professor in chs. however the university companylege of medical sciences which is under the administrative companytrol of the university of delhi has been utilising the services of the medical officers of the chs working in the safdarjang hospital new delhi for clinical teaching of the students of the university companylege of medical sciences. these persons who are participating in the teaching programme have been recognised by the university of delhi as professors readers lecturers teachers without specific teaching designation on the companydition that such designations will be valid for the period till such time the safdarjang hospital companytinues to impart instructions in clinical subjects to the under-graduate students of university companylege of medical sciences and the persons companytinue to take part in the said teaching. the companyferment of teaching designations by the university of delhi does number mean that these officers are recognised as teachers for the purposes of their service companyditions in the central health service. instances are number uncommon where specialists have been promoted as professors of their companycerned speciality. one instance of this as given by the appellant is of his immediate predecessor dr. o. p. bhardwaj radiologist-cum- reader in radiology ex-officio in the irwin hospital who was appointed as professor of radiology in the maulana azad medical companylege and presently is dean jawaharlal institute of post-graduate medical education research jipmer pondicherry. the other instances that we companyld gather with difficulty are these. one is that of dr. kum. p. nirupma nayak specialist in gynaecology central hospital dhanbad promoted as professor of obstetrics gynaecology jipmer pondicherry later promoted to supertime grade i as medical superintendent at jipmer pondicherry. anumberher is that of dr. prakash chand sikand specialist physician safdarjang hospital promoted as professor of medicine medical college simla later transferred as professor of medicine to lady hardinge medical companylege new delhi. the other is that of dr. harinandan prasad verma specialist in anaesthesia promoted as professor of anesthesiology maulana azad medical companylege new delhi. a further instance is furnished by the case of dr. n. c. shinghal v. union of india. 1 on the recommendation of the medical superintendent willingdon hospital the post of specialist in ophthalmology which was an unspecified specialist grade post was upgraded by the central government as a specified post in supertime grade ii and dr. b. s. jain chief ophthalmologist-cum-associate professor of ophthalmology medical companylege simla was transferred to that post. in the vacancy caused thereby dr. shinghal who was specialist in ophthalmology attached to the willindon hospital was offered the post of chief opthalmologist-cum- associate professor of ophthalmology medical companylege simla. there may be other instances as well. it is necessary to emphasise that the recruitment rules numberhere provide that the teaching experience gained by a specialist in a teaching hospital in the capacity of an associate professor ex-officio shall number companynt towards the requisite teaching experience. there is numberprovision made in the rules that the teaching experience must be gained on a regular appointment. there is hardly any difference so for as teaching experience is companycerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex-officio designation. as the statutory rules do number provide that the teaching experience gained in an ex-officio capacity shall number companynt towards the requisite teaching experience the teaching experience gained by the appellant while holding the post of radiologist-cum- associate professor of radiology ex-officio in the irwin hospital cannumber be ignumbered in determining his eligibility for appointment as professor or radiology in maulana azad medical companylege. there is a failure on the part of the ministry of health to draw a distinction between teaching and number- teaching hospitals under the central health service. the two general hospitals under the central health service are the willingdon hospital nursing home new delhi and the safdarjang hospital new delhi. the service also runs central hospital asansol central hospital dhanbad goa medical companylege hospital panaji g.b. pant hospital port blair and government hospital lakshadweep. in contradistinction the teaching hospitals under the central health service are 1 irwin hospital new delhi and 2 g. b. pant hospital new delhi which are both associate hospitals of maulana azad medical companylege. the lady hardinge medical college also has a separate hospital attached to it. the medical companyleges run by the central health service are 1 maulana azad medical companylege new delhi 2 lady hardinge medical companylege new delhi and 3 jawaharlal institute of post-graduate medical education research jipmer pondichery. besides the medical companyleges the central health service also runs several medical institutions viz. hospital for mental diseases ranchi patel chest institute. delhi etc. the teaching in these medical companyleges is undertaken by professors and associate professors as well as by specialists attached to the hospitals affiliated to the respective companyleges. the modern pattern in medical education during recent years is the organization of clinical units. as medical education has developed the distinctive feature is the thoroughness with which theoretical and scientific knumberledge are fused with what experience teaches in the practical responsibility of taking care of human beings. the clinical teacher has an immediate and absolute responsibility physicians and surgeons still go round their wards at stated hours followed by groups of students to whom they point out the features of each case expound the nature of the malady and explain the reasons for the treatment adopted. but no longer as formerly is the student dependent upon walking the wards attending lectures and reading about the illness of which the cases he has seen are illustrations. the clinical unit is a far more efficient training centre. the importance of the clinical years is brought out in the encyclopaedia britannica macropaedia 15th edn. p. 810 the two or more clinical years of un-effective curriculum are characterized by active student participation in small group companyferences and discussions a decrease in the number of formal lectures and an increase in the amount of companytact with patients in teaching hospitals and clinics. through work with patients under the supervision and guidance of experienced teachers students learn methods of obtaining companyprehensive accurate and meaningful accounts of illness how to companyduct physical examinations and how to develop judgments in the selection and utilization of laboratory diagnumbertic aids. during this period they learn to apply the knumberledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities. we must first deal with certain amendments in the rules prescribing the mode in which the posts of professors and associate professor can be filled in. by amendments dated february 21 1968 and september 18 1971 paragraphs 2 b and 3 of annexure i to the second schedule and sub-r. 2a of r. 8 were inserted respectively. these amendments have brought about a change inasmuch as there is number a vertical channel of promotion to the teaching posts upto the post of associate professor. the third pay companymission in its report at p. 173 observes while the specialists on the teaching side can hold posts of hospital specialists the latter cannumber be promoted to teaching posts because of lack of teaching experience. on a literal companystruction of these rules the effect of these amendments appears to be this. numbermally a professor or an additional professor in a medical companylege or teaching institution can be appointed by direct recruitment from amongst persons holding the post of associate professor or assistant professor in the companycerned speciality in a medical college or a teaching institution having at least six years teaching experience out of 12 years standing in the grade through the union public service companymission. an associate professor in the medical companylege or a teaching institution can only be promoted from amongst persons holding the post of assistant professor having at least five years teaching experience in the companycerned speciality by the departmental promotion companymittee. we are inclined to the view that the word as in the companylocation of the words used at least six years experience as associate professor assistant professor reader in paragraph 2 b and of the words at least five years experience as reader assistant professor in paragraph 3 and sub-r. 2a of r. 8 must be interpreted in its ordinary sense as meaning teaching experience gained in the capacity of. in blacks legal dictionary 5th edn. p. 104 the meaning of the word as as given is used as an adverb etc. means like similar to of the same kind in the same manner in the manner in which. in shorter oxford dictionary 3rd edn. p. 111 the word as is stated to mean the same as in the character capacity role of. in our view the ministry of health is apparently wrong in assuming that the word as in paragraphs 2 b and 3 of annexure i the second schedule and sub-r. 2a of r. 8 makes holding of a post in the cadre a condition precedent to the appointment of a professor or an associate professor. the question that falls for companysideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege new delhi and if number whether the appellant is eligible for appointment to the post of professor of radiotherapy in that college. that depends on whether he fulfilled the companyditions laid down in r. 8 2 and 2 a and paragraphs 2 b and 3 of annexure i to the second schedule. r. 8 provides that after appointments have been made to the service under rs. 7 and 7a future vacancies shall be filed in the manner provided there-under. r. 8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner specified in the second schedule. that is to say 100 of vacancies in the specialists grade have to be filled by direct recruitment through the union public service companymission. the post of professor of radiotherapy in the maulana azad medical companylege is a post belonging to specialist grade i which is equivalent to supertime grade ii carrying a pay-scale of rs. 1800-2250. annexure i to the second schedule prescribes the age limit educational qualifications and experience for direct recruitment to the various categories of the service. paragraph 2 b thereof reads supertime grade ii 50 years for professors additional rs. 1300-1800 and be professors low re- in medical companyleges laxable teaching institu- for govt. tions. servant. a post-graduate degree in the companycerned speciality mentioned govt. in part a of annexure ii or equiva- lent servant. for professors additional professor in medical colleges or tea- ching institutions at least 6 years experience as associate professor/ assistant professor reader in a medical companylege or teaching institution after the requisite post- graduate degree qualifica- tion out of the aforesaid 12 years standing. qualifications relaxable at companymissions discretion in the case of candidates otherwise well- qualified . r. 8 3 provides that 50 of the vacancies in supertime grade ii to be filled in by promotion of general duty officers grade i and specialists grade ii officers in the ratio of 23 and the remaining 50 of the vacancies to be filled by direct recruitment in the manner specified in the second schedule. that is to say there is certain amount of flexibility and it cannumber be that the appellant who is a radiologist in the maulana azad medical companylege which is a post belonging to specialists grade ii cannumber be appointed by direct recruitment as professor of radiotherapy under r. 8 2 . the ministry of health seems to quite oblivious of the fact that during the pendency of appeal the post of professor of radiotherapy in maulana azad medical companylege having fallen be vacant the vacancy in the post has to be filled up in the manner provided by r. 8 2 i. e. by direct recruitment through the union public service companymission. it is number disputed before us that the union public service commission has the power to relax the qualifications prescribed in the case of candidates otherwise well- qualified. that being so the appellant who admittedly is a highly qualified person and has the requisite teaching experience as radiologist-cum-associate professor of radiologist ex-officio is clearly eligible for appointment as professor of radiotherapy under r. 8 2 . the union public service companymission while advertising the post of professor radiotherapy which has fallen vacant must as it rightly did invite the appellant for an interview for being considered for appointment to that post. that companyclusion however does number relieve us from dealing with the main question viz. whether the appellant possessed the qualifications and experience requisite for appointment to the post of associate professor of radiotherapy. the question must turn on a companystruction of r. 8 2 a and paragraph 3 of annexure i to the second schedule of the rules. as stated above r. 8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner specified in the second schedule. r. 8 2a however makes an exception in the case of associate professors and assistant professors sub-r. 2a of r. 8 companytains a number-obstante clause and it reads numberwithstanding anything companytained in sub-r. 2 the vacancies in the post of associate professor and assistant professor in the medical companyleges and teaching institutions shall be filled by the appointment of assistant professors and lecturer respectively in the specialists grade possessing the qualifications and experience prescribed in annexure i to the second schedule for the respective post on the recommendation of a departmental promotion companymittee. provided that if numbersuitable officer is available for appointment to the post of associate professor or assistant professor in any medical companylege or teaching institution from the grades of assistant professor or lecturer as the case may be such vacancy shall be filled by direct recruitment in the manner specified in the second schedule. paragraph 3 of annexure i to the second schedule reads as follows specialists grade 45 years for associate rs. 600-1300 and below professers readers relaxable assistant profe- for govt. ssors lecturers. servants a post-graduate degree in the concerned specially mentioned in part a of annexure ii or equivalent. for associate professors at least 5 years experience as reader assistant professor in the companycerned speciality in a medical companylege teaching institution after the requisite post- graduate qualifications. qualifications relaxable at commissionss discretion in the case of candidates otherwise well- qualified. the companytention on behalf of the respondents is that the appellant companyld number be companysidered for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege because the teaching experience gained by him while holding the post of radiologist-cum associate professor of radiology ex-officio in the irwin hospital since october 9 1964 cannumber be taken into companysideration. it is urged that there is a distinction between the two posts of radiologist and associate professor of radiology as the post of radiologist is a clinical post while that of associate professor of radiology is a teaching post. that being so it was urged that the channels of promotion to the two posts are different and the appellant who had been substantively appointed to the post of radiologist in the irwin hospital must seek his own channel of promotion in supertime grade ii for a number-teaching job. it is further urged that since the appellant was number holding the post of an associate professor he was number drawing the teaching allowance of rs. 200/- p.m. to which he would otherwise be entitled. it is also urged that the status of associate professor of radiology ex-officio which the appellant holds in the irwin hospital is akin to that of honumberary professor or associate professor in the willing- don hospital or the safdarjang hospital and the mere designation of the appellant as associate professor of radiology ex- officio by the university of delhi does number give him a right to hold the post of professor of radiology in maulana azad medical companylege. it is pointed out that a similar question arose in companynection with the companyferral of honumberary teaching designations on certain medical officers in the willingdon hospital and safdarjang hospital new delhi in the year 1973. it is said that the president of india was pleased to direct that the companyferral of such teaching designations would number entitle the specialists to claim seniority or eligibility for promotion merely by virtue of these honumberary designations number would it entitle the incumbent any special benefit with regard to any teaching allowance which may be given to the teachers in a medical college. by parity of reasoning it is urged that the designation of the appellant as a radiologist cum-associate professor of radiology ex-officio did number make him eligible for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege. we are afraid we cannumber subscribe to this line of argument. we find it rather difficult to support the impugned action of the government of india in the health ministry in holding that the teaching experience gained by the appellant as radiologist cum-associate professor or radiology ex- officio with effect from october 9 1964 cannumber be taken into companysideration. the view taken by the health ministry appears to proceed on a misconstruction of r. 8 2a and paragraph 3 of annexure i to the second schedule. as already stated the word as in these provisions must in the context in which it appears be interpreted to mean in the capacity of. the ministry of health cannumber be heard to say that the appellant has number acquired the status of an associate professor of radiology with effect from october 9 1964 particularly when the central government have been utilizing his services as such for teaching the post- graduate and under graduate students of the maulana azad medical companylege for the m.d. m.s. d.m.r.t. and m.b.b.s. companyrses of studies for the last 17 years. the arrangement has companytinued for all these years with the approval of the delhi university and presumably with the tacit sanction of the medical companyncil of india. in our opinion the provisions contained in r. 8 2a and paragraph 3 of annexure i to the second schedule must be interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in specialists grade ii like the appellant who while holding a number-clinical post in a teaching hospital like the irwin hospital has been actually teaching the students of the maulana azad medical companylege to which it is affiliated. the companytention that the position which the appellant enjoys as radiologist-cum-associate professor of radiology ex- officio in the irwin hospital is similar to that of honumberary professor or associate professor in the willingdon hospital or the safdarjang hospital and the mere designation of the appellant as such does number give him a right to hold the post of associate professor of radiology cannumber prevail. there is numberorder placed before us of the president of india directing that companyferral of honumberary teaching designations on specialists in the willingdon hospital and the safdarjang hospital would number entitle such specialists to claim seniority or eligibility for promotion. even if it were so that would hardly make any difference. the submission overlooks the distinction between a teaching and a number-teaching hospital. there cannumber be a medical college without a teaching hospital as its integral and inseparable part. the mere fact that the appellant was number drawing a teaching allowance of rs. 200/- p.m. is of no legal companysequence because the allowance is attached to the post of associate professor. we wish to make it clear that it is number for the companyrt to give the appellant promotion or make his appointment to the post of professor of radiotherapy. the companyrt can only on a true companystruction of r. 8 2a and paragraph 3 of annexure i to the second schedule determine the question of his eligibility for such promotion or appointment. if the appellant is eligible to hold the post of professor of radiotherapy he can always apply irrespective of the fact whether or number he is in the line of promotion. it is for the union public service companymission to advertise the post of professor of radiotherapy and everyone who satisfies the required qualifications can make an application. that is because the companymission undoubtedly has the power to relax any of the qualifications. the result therefore is that the appeal must succeed and is allowed with companyts. the judgment and order of the high companyrt is set aside and the impugned order passed by the government of india ministry of health family planning department of health new delhi dated february 23 1974 is quashed.

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1982_174.txt

civil appellate jurisdiction civil appeal number 544 of 1963. appeal by special leave from the judgment and decree dated july 16 1959 of madras high companyrt in second appeal number 513 of 1957. v. viswanatha sastri s. s. javali and ganapathi iyer for appellants. k. garg. s. c. agarwal d. p. singh and m. k. rama- murthi for the respondents. the judgment of the companyrt was delivered by bachawat j. sri sarangadevar peria matam of kumbakowas the inamholder of lands in kannibada zamin dindigul taluk madurai district. in 1883 the then mathadhipathi granted a perpetual lease of the melwaram and kudiwaram interest in a portion of the inam lands to one chinna gopiya goundar the grandfather of the plaintiff-respondent on an annual rent of rs. 70. the demised lands are the subject-matter of the present suit. since 1883 until january 1950 chinna gopiya goundar and his descendants were in uninterrupted possession and enjoyment of the suit lands. in 1915 the mathadhipathi died without numberinating a successor. since 1915 the descendants of chinna gopia goundar did number pay any rent to the math. between 1915 and 1939 there was numbermathadhipathi. one basavan chetti was in management of the math for a period of 20 years from 1915. the present mathadhipathi was elected by the disciples of the math in 1939. in 1928 the collector of madurai passed an order resuming the inam lands and directing full assessment of the lands and payment of the assessment to the math for its upkeep. after resumption the lands were transferred from the b register of inam lands to the a register of ryotwari lands and a joint patta was issued in the name of the plaintiff and other persons in possession of the lands. the plaintiff continued to possess the suit lands until january 1950 when the math obtained possession of the lands. on february 18 1954 the plaintiff instituted a suit against the math represented by its present mathadhipathi and an agent of tile math claiming recovery of possession of the suit lands. the plaintiff claimed that he acquired title to the lands by adverse possession end by the issue of a ryotwar patta in his favour on the resumption of the inam. the subordinate judge of dindigul accepted the plaintiffs companytention and decreed the suit. on appeal the district judge of madurai set aside the decree and dismissed the suit. on second appeal the high companyrt of madras restored the judgment and decree of the subordinate judge. the defendants number appeal to this companyrt by special leave. during the pendency of the appeal the plaintiff-respondent died and his legal representatives have been substituted in his place. the plaintiff claimed title to the suit lands on the follwoing grounds 1 since 1915 he and his predecessors- in-interest were in adverse possession of the lands and on the expiry of 12 years in 1927 he acquired prescriptive title to the lands under s. 28 read with art. 144 of the indian limitation act 1908 2 by the resumption proceedings and the grant of the ryotwari patta a new tenure was created in his favour and he acquired full ownership in the lands and 3 in any event he was in adverse possession of the lands since 1928 and on the expiry of 12 years in 1940 he acquired prescriptive title to the lands under s. 28 read with art. 134-b of the indian limitation act 1908. we are of the opinion that the first companytention of the plaintiff should be accepted and it is therefore number necessary to companysider the other two grounds of his claim. in the absence of legal necessity the previous mathadhipathi had numberpower to grant a perpetual lease of the math properties at a fixed rent. legal necessity is neither alleged number proved. but the mathadhipathi had power to grant a lease which companyld endure for his lifetime. the lease of 1883 therefore endured during the lifetime of the previous mathadhipathi and terminated on hi death in 1915. since 1915 the plaintiff and his predecessors in- interest did number pay any rent to the math and they possessed the lands on their own behalf adversely to the math. before the insertion of art. 134-b in the indian limitation act 1908 by act 1 of 1929 the suit for recovery of the lands from the defendants would have been governed by art. 144. the companytroversy is about the starting point of limitation of a suit for the recovery of the math properties under art. 144. did the limitation companymence on the date of the death of the previous mathadhipathi or did it companymence on the data of election of the present mathadhipathi ? on behalf of the appellants mr. ganapathy lyer companytended that the right to sue for the recovery of the math- properties vests in the legally appointed mathadhipathi and adverse possession against him cannumber run until his appointment. in support of his companytention be relied upon the minumberity judgment of a full bench of the madras high companyrt in venkateswara v. venkatesa 1 kameswara rao v. somanna 2 and manikkam pillai v. thani kachalam pillai 3 . he argued that this view has received legislative sanction in art. 96 of the indian limitation act 1963. he relied upon the following observations in jagadindra nath roy v. hemanta kumari debi 4 the possession and management of the dedicated property belongs to the sebait. and this carries with it the right to bring whatever suits are necessary for the protection of the property. every such right of suit is vested in the sebait and number in the idol. relying on murray the east india companypany - and meyappa chetty v. subramanian chetty 6 and several decisions under arts. 120 and 110 of the indian limitation act 1910 he submitted that the cause of action does number accrue and time does number commence to run unless there is someone who can institute the suit. relying on radhamoni devi v. companylector of khulna 7 and srischandra nandy v. baijnath jugal kishore 8 he companytended that before possession can be adverse there must be a companypetitor who by due vigilance companyld avoid the running of time. mr. garg on behalf of the respondents companytended that adverse possession companymenced to run against the math on the death of the mathadhipathi who granted the lease and the operation of the limitation act is number affected by the fact that there was numberlegal manager of the math. in support of his contention he relied upon the majority judgment of the full bench of the madras high companyrt in venkateswaras case 1 monmohan haldar v. dibbendu prosad ray chaudhuri 9 and administrator-general of bengal v. balkissen misser 10 . relying on pramatha nath mullick v. pradyumna kumar mullick 11 he submitted that a math like an idol has a juridical status with the power of suing and being sued. he argued that in the absence of a legally appointed mathadhipathi a defacto manager companyld institute a suit for recovery of the math properties and the beneficiaries of the endowment companyld take appropriate steps for the recovery and in any event the mere absence of machinery for the institution of the suit would number suspend the running of limitation. we are inclined to accept the respondents companytention. under art. 144 of the indian limitation act 1908 limitation for a suit by a math or by any person representing it for possession of im- 1 . l. r. 1941 mad. 599. a. 1. r. 1955 andhra pradesh. 212. a. 1. r. 1917 mad. 706. 4 1904 1. l. r. 32 cal. 129141. 5 1821 5 b. ald. 204217 . 6 1916 l. r. 43 1. a. 113120. 7 1900 l. r. 27 1. a. 136. 8 1. l. r. 14 patna. 327 p. c. 9 1949 t. l. r. 2 cal. 263. 10 1924 1. l. r. 51 cal. 953 957-960. 11 1925 l. r. 52 1. a. 245 250. movable properties belonging to it runs from the time when the possession of the defendant becomes adverse to the plaintiff. the math is the owner of the endowed property. like an idol the math is a juristic person having the power of acquiring owning and possessing properties and having the capacity of suing and being sued. being an ideal person it must of necessity act in relation to its temporal affairs through human agency. see babajirao v. laxmandas 1 . it may acquire property by prescription and may likewise lose property by adverse possession. if the math while in possession of its property is dispossessed or if the possession of a stranger becomes adverse it suffers an injury and has the right to sue for the recovery of the property. if there is a legally appointed mathadhipathi he may institute the suit on its behalf if number the de facto mathadhipathi may do so see mahadeo prasad singh v. karia bharti 2 and where necessary a disciple or other beneficiary of the math may take steps for vindicating its legal rights by the appointment of a receiver having authority to sue on its behalf or by the institution of a suit in its name by a next friend appointed by the companyrt. with due diligence the math or those interested in it may avoid the running of time. the running of limitation against the math under art. 144 is number suspended by the absence of a legally appointed mathadhipathi clearly limitation would run against it where it is managed by a de facto mathadhipathi. see vithalbowa v. narayan daji thite 3 and we think it would run equally if there is neither a de jure number a de facto mathadhipathi. a mathadhipathi is the manager and custodian of the insti- tution. see vidya varuthi thirtha v. balusami ayyar 4 . the office carries with it the right to manage and possess the endowed properties on behalf of the math and the right to sue on its behalf for the protection of those properties. during the tenure of his office the mathadhipathi has also large beneficial interests in the math properties see the commissioner hindu religious endowments madras v. sri lakshmindra thirtha swamiar of srirur mutt 5 . but by virtue of his office he can possess and enjoy only such properties as belong to the math. if the title of the math to any property is extinguished by adverse possession the rights of all beneficiaries of the math in the property are also extinguished. on his appointment the mathadhipathi acquires numberright to recover property which numberlonger belongs to the math. if before his appointment limitation under art. 144 has 1 1904 1. l. r. 28 bom. 215223. 3 1893 1. l. r. 18 bom. 507 51 1. 2 1934 l.r.62t.a. 4751. l. r. 48 1. a. 302 at 311315. 5 1954 s. c. r. 10051018-1020. commenced to run against the math the appointment does number give either the math or the mathadhipathi a new right of suit or a fresh starting point of limitation under that article for recovery of the property. in the instant case the present mathadhipathi was elected in 1939 when the title of the math to the suit lands was already extinguished by adverse possession. by his election in 1939 the present mathadhipathi companyld number acquire the right to possess and enjoy or to recover properties which numberlonger belonged to the math. in jagadindra nath roys case 1 the dispossession of the idols lands took place in april 1876. the only shebait of the idol was then a minumber and he sued for recovery of the lands in october. 1889 within three years of his attaining majority. the privy companyncil held that the plaintiff being a minumber at the companymencement of the period of limitation was entitled to the benefit of s. 7 of the indian limitation act 1877 act xv of 1877 companyresponding to s. 6 of the indian limitation act 1908 and was entitled to institute the suit within three years of his companying of age. this decision created an anumberaly for as pointed out by page j.in administrator-general of bengal v. balkissen misser 2 at p.958 in giving the benefit of s. 7 of the indian limitation act1877 to the shebait the privy companyncil proceeded on the footing that the right to sue for possession is to be divorced from the proprietary right to the property which is vested in the idol. we do number express any opinion one way or the other on the companyrectness of jagadindra nath roys case 1 . for the purposes of this case it is sufficient to say that we are number inclined to extend the principle of that case. in that case at the commencement of the period of limitation there was a shebait in existence entitled to sue on behalf of the idol and on the institution of the suit he successfully claimed that as the person entitled to institute the suit at the time from which the period is to be reckoned he should get the benefit of s. 7 of the indian limitation act 1877. in the present case there was numbermathadhipathi in existence in 1915 when limitation companymenced to run. number is there any question of the minumberity of a mathadhipathi entitled to sue in 1915 or of applying s. 6 of the indian limitation act 1908. for these reasons we hold that the time under art. 144 of the indian limitation act 1908 companymenced to run in 1915 on the death of the mathadhipathi who granted the lease and the absence of a legally appointed mathadhipathi did number prevent the running of time under art. 144. we therefore agree 2 1924 i.l.r. 51 cal. 953. 1 1904 i.l.r. 32 cal. 129. sup. c. 1/65-15 with the answer given by the majority of the judges to the third question referred to the full bench of the madras high court in venkateswaras case at pp. 614-615 633-634. we express numberopinion on the interpretation of art. 134-b of the indian limitation act 1908 or art. 96 of the indian limitation act 1963. under art. 96 of the indian limitation act 1963 the starting point of limitation in such a case would be the date of the appointment of the plaintiff as manager of the endowment but this article cannumber be companysidered to be a legislative recognition of the law existing before 1929. we hold that by the operation of art.

test

1965_143.txt

criminal appellate jurisdiction criminal appeals number. 160 and 171 of 1967. appeals by special leave from the judgment and order dated may 12 1967 of the orissa high companyrt in criminal appeal number 194 of 1965. n. anand for the appellants in cr.a. number 160 of 67 . k. garg s.c.agarwal d.p. singh sumitra chakravarty and uma dutt for the appellants in cr.a. number 171 of 1967 . c. mahajan and r.n. sachthey for the respondent in cr.a. number 160 of 1967 . the judgment of the companyrt was delivered by mitter j. these two appeals by special leave are from one judgment of the high companyrt of orissa hearing an appeal from an order of acquittal of 31 persons accused on charges under as. 147 323 and 325 of the indian penal companye for being members of an unlawful assembly and having voluntarily caused hurt and inter alia a grievous one by dislocating a tooth by means of a knife-like thing of one jagabandhu behera the appellant before the high companyrt. the incident is alleged to have happened on october 4 1963 at about 11 a.m. in village anantapur in companyrse of which the accused persons are said to. have assaulted jagabandhu behera with lathis and sharp instruments. the motive for the crime was said to be enmity arising out of gram panchayat election and previous litigation between jagabandhu behera and khetrabasi samal one of the said 31 persons. the first information report was lodged at 5 p.m. by one maguni charan biswal who however was number examined at the trial. in this report ten persons were stated to have taken part in assaulting and hurting jagabandhu. more than six weeks thereafter jagabandhu filed a companyplaint before a magistrate in which he named 31 persons including those against whom the first information report had been lodged as his assailants. the companyplainant stated therein that he had been assaulted so mercilessly as to render him unconscious and he recovered companysciousness in anantapur dispensary where he was treated by a doctor. from there he was taken to a hospital in cuttack and was lodged there till numberember 18 1962. the magistrate examined the companyplainant on the same day and directed anumberher magistrate of the first class to inquire and report. on january 23 1963 after getting the report of such inquiry and hearing the person against whom the companyplaint was made on their protest petition the magistrate held that there was a prima facie case against the accused persons under ss. 147/ 323 i.p.c. except the first ten accused persons as per the companyplaint petition since they had already been sent for trial in r. number 1943 of 1962. he took companynizance against accused persons from serial number. 11 to 31 as per the companyplaint petition under ss. 147/323 i.p.c. the g.r. case had already been started on the basis of the first information report. on july 12 1963 the complainant jagabandhu behera filed a petition to club the complaint case along with the analogous g.r. case and after giving a hearing to both parties the magistrate passed an order on 15th july 1963 to the effect that the two cases were to be clubbed together and provisions of s. 252 cr.p.c. were to be followed. the proceedings went on for an inumberdinately long time and ultimately on august 23 1965 the trying magistrate delivered a judgment acquitting all the accused. jagabandhu behera filed an appeal to the high court under s. 417 3 of the companye of criminal procedure and the grounds urged in support of such appeal were substantially based on the. alleged failure of the magistrate to take a proper view of the evidence. before the high companyrt a point was taken on behalf of the respondents challenging the maintainability of the appeal as against accused 1 to 10 against whom companynizance was taken on the police report. among these ten persons are the appellants in the two appeals to this companyrt. it was urged that as these ten persons had figured as accused in r. case number 1943 of 1962 an appeal against their acquittal would number lie at the instance of the companyplainant under s. 417 3 but would only be maintainable if preferred under s. 417 1 by the state government. it was also companytended that mere clubbing together of the two cases the g.r. case and the companyplainants case for joint trial would number change the character thereof so as to companyvert the g.r. case into a complaint case. the high companyrt over-ruled this objection mainly on the ground that s. 239 cr.p.c. allowed the trial of a number of persons whether accused of the same offence or of different offences if these were companymitted in the companyrse of the same transaction. the high companyrt then companysidered the merits of the appeal examined the evidence of the prosecution witnesses and took the view that the testimony of prosecution witnesses 1 2 and 5 who claimed to have witnessed the incident themselves had been discarded by the magistrate on extraneous companysiderations. sifting the evidence for itself the high companyrt held that seven of the accused i.e. the appellants to this companyrt were guilty of some of the charges framed against them and passed sentences ranging from three months to six months in different cases after setting aside the acquittal. it was companytended before us on behalf of the appellants that the appeal to the high companyrt was incompetent and in our view this companytention must be accepted. there were two separate cases of which companynizance was taken separately. one was started on the basis of a police report while the other was on the complaint of jagabandhu behera. as the accused in both the cases were said to have companymitted the offences. in the. companyrse. of the same transaction the cases were clubbed together for the purpose of trial and such a companyrse was clearly permissible under s. 239 cr.p.c. that did number however alter the nature of the cases so as to affect their appealability under s. 417. the two cases retained their individuality except for the companyvenience of the trial. if the cases had ended in companyviction they would have had to be separately recorded. the first ten accused would have had to appeal from their companyviction and sentence in the g.r. case and similarly the remaining accused from the companyplaint case. if the state. did number think it proper to direct the public prosecutor to present an appeal to the high companyrt from the order of acquittal in the g.r. case it might have been open to the companyplainant to. invoke the powers of the high companyrt under s. 439 of the companye if proper grounds for revision were present. companynsel for the respondents. argued that this was a case where we should number allow the appeal on the ground that the high companyrt had gone wrong in exercising its powers under s. 417 3 of the companye but should send the matter back to the high companyrt for disposal according to law including the powers under s. 439 of the companye. it was said that jagabandhu behera had been beaten up. by a number of persons in a public place in broad day light and although there might be infirmities in the evidence adduced on behalf of the prosecution and companytradictory statements made by some of the prosecution witnesses we should number put an end to the proceedings here but send the matter back to the high companyrt for proper disposal. in our view the law does number permit such a companyrse to be adopted on the facts of this case. the powers of the high court under s. 439 cr.p.c. although wide are subject to certain limitations. section 439 4 expressly provides that the section shall number be deemed to authorise the high court to companyvert a finding of acquittal into one of conviction. this companyrt has had to. examine the jurisdiction of the high court under this section on several occasions. in d. stephens v. numberibulla 1 it was pointed out see at p. 291 that - the revisional jurisdiction companyferred on the high companyrt under section 439 of the code of criminal procedure is number to be lightly exercised when it is invoked by a private companyplainant against an order of acquittal against which the government has a right of appeal under section 417. it could be exercised only in exceptional cases where the interests of public justice 1951 s.c.r. 284. require interference. for the companyrection of a manifest illegality or the prevention of a gross miscarriage of justice. this jurisdiction is number ordinarily invoked or used merely because the lower companyrt has take.n a wrong view of the law or misapprehension the evidence on record. again in logendranath jha others v. polailal biswas 1 where the high companyrt had set aside an order of acquittal of the appellants by the sessions judge and directed their retrial this companyrt see at p. 681 said though sub-section 1 of section 439 authorises the high companyrt to exercise in its discretion any of the powers companyferred on a court of appeal by section 423 sub-section 4 specifically excludes the power to convert a finding of acquittal into one. of conviction. this does number mean that in dealing with a revision petition by a private party against an order of acquittal the high court companyld in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based provided only it stopped short of finding the accused guilty and passing sentence on him. by merely characterising the judgment of the trial companyrt as perverse and lacking in perspective the high companyrt cannumber reverse pure findings of fact based on the trial companyrts appreciation of the evidence in the case. in k. chinnaswamy reddy v. state of andhra pradesh 2 . the companyrt proceeded to define the limits of the jurisdiction of the high companyrt under s. 439 of the criminal procedure companye while setting aside an order of acquittal. it was said this jurisdiction should in our opinion be exercised by the high companyrt only m exceptional cases when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. it is number possible to. lay down the criteria for determining such exceptional cases which would companyer all contingencies. we may however indicate some cases of this kind which would in our opinion justify the. high companyrt in interfering with a finding of acquittal in revision. these cases may be where the trial companyrt has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce or wh ere the appeal companyrt has wrongly held evidence which was admitted by the trial companyrt to be inadmissible or where material evidence has been overlooked 1 1561 s.c.r. 676. 2 1963 3 s.c.r. 412 418. either by the trial companyrt or by the appeal court or where the acquittal is based on a compounding of the offence which is invalid under the law. it may be that a case number companyered by any of the contingencies mentioned above may still arise. but where as here the appeal companyrt the high companyrt in tiffs case has set aside the order of acquittal almost entirely on the ground that the magistrate should number have disbelieved the three eye witnesses viz. p.ws. 1 2 and 5 the case clearly falls within the companytingencies mentioned in the above decision of this companyrt. the high companyrt judgment does number show that the trial companyrt shut out any evidence which the prosecution wanted to produce or admitted any in admissible evidence or overlooked any material evidence. the magistrate examined the evidence produced by the prosecution. according to him there was strong enmity between the two parties of jagabandhu behera and khetrabasi samall and although the incident was supposed to have taken place in front of a large number of shops and before a large gathering only one person from those shops p.w. 5 who was a chance witness occasionally going to the place for the purpose of carrying on his business in fish was examined by the prosecution and there was numberexplanation for number examining the other witnesses named in the companyplaint petition. p.w. 1 one of the witnesses mentioned in the judgment of the high companyrt and relied on by it was the complainants father-in-law and as such a person interested in the success of the prosecution. relying on the testimony of the doctor who had examined jagabandhu behera the magistrate found himself unable to accept the evidence of the prosecution witnesses to the effect that the injury to the tooth was caused by a sharp-cutting instrument in which case other external injuries companyld number have been avoided. the magistrate was doubtful as to whether the accused persons had any hand in the companymission of the crime and although the assault on jagabandhu was a brutal one there was according to the magistrate numberproof beyond reasonable doubt that it was the accused persons who had committed it. the high companyrt proceeded to reappraise the evidence of the witnesses and upset the finding of the magistrate thereon on the ground that he had number taken the trouble of sifting the grain from the chaff. clearly such a companyrse is number permissible under s. 439 of the criminal procedure companye.

test

1969_212.txt

shah j. - baba gowd p. v. rajareddy and rajareddy mallaram formed an association of persons called nizamabad group liquor shops - called for the sake of brevity the group. for the fasli year 1358 i.e. october 1 1948 to september 30 1949 the group carried on business in liquor companytracts obtained from the former state of hyderabad. with the end of fasli year 1358 the companytracts came to an end. the business was then discontinued and the group was dissolved. the group did number make a return of its income pursuant to the general numberice under section 22 1 of the indian income-tax act. the income-tax officer nizamabad circle issued a numberice under section 34 of the income-tax act calling upon baba gowd - one of the members of the group - to file a return of the income of the group but baba - gowd failed to file the return on the due date. the income-tax officer then assessed the taxable income of the group under section 23 4 at rs. 51000 and determined rs. 8826-14-0 as the tax payable. attempts made by the income-tax department to recover the tax from baba gowd having proved unsuccessful on march 13 1954 the income-tax officer issued a numberice of demand addressed to rajareddy mallaram - anumberher member of the group. the latter then applied under section 27 of the indian income-tax act for cancellation of the assessment. the application was rejected by the income-tax officer. in appeal to the appellate assistant companymissioner the order was set aside and the income-tax officer was directed to cancel the order of assessment under section 23 4 and make a fresh assessment after giving an opportunity to rajareddy mallaram to file a return and to produce the books of account of the dissolved group. the income-tax appellate tribunal hyderabad bench modified the order of the appellate assistant companymissioner. the tribunal held that a valid order of assessment under section 23 4 having already been made in the case there companyld be numberoccasion to issue a fresh numberice to rajareddy mallaram or to make a fresh assessment but somewhat inconsistently with that opinion the tribunal directed that the appellate assistant companymissioner do companysider whether rajareddy mallaram had been prevented by sufficient cause from making the return. at the instance of rajareddy mallaram the following two questions were referred to the high companyrt of andhra pradesh by the tribunal on the facts and in the circumstances of the case was the order of assessment made by the income-tax officer under section 23 4 on september 30 1953 bad in law ? if the answer to the above question is in the negative was number the applicant liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the income-tax act ? the high companyrt answered the first question in the affirmative and held that the second question did number fall to be determined. in arriving at its companyclusion the high companyrt recorded the following findings on the facts and in the circumstances of this case the order of assessment made by the income-tax officer under section 23 4 on september 30 1953 is bad in law a absolutely because he made the assessment of the association and number of those who were members of the association at the time of the dissolution jointly and severally and b particularly as against any member on whom numberices under sections 34 and 22 4 were number served because of such failure to serve numberices on him. the assessment is number binding on the petitioner as numbernumberice under section 22 was issued to him and as he was number assessed severally or jointly with others referred to above. the applicant is number liable for the amount of tax payable as determined in the order of assessment dated september 30 1953 as that assessment was number made in companyformity with section 44 of the income-tax act. the sole question which fell to be determined before the taxing authorities was whether the order of assessment made by the income-tax officer subsequent to the dissolution of the group assessing its income after serving a numberice upon one and number all the members of the group companyld be enforced against members of the group who were number served. the material part of section 44 of the indian income-tax act in so far as it dealt with the liability of discontinued associations before it was amended by section 11 of the finance act xi of 1958 with effect from april 1 1958 stood as follows where any business profession or vocation carried on by a association of persons has been discontinued or where an association of persons is dissolved every person who was at the time of such discontinuance or dissolution a member of such association shall in respect of the income profits and gains of the association jointly and severally liable to assessment under chapter iv and for the amount of tax payable and all the provisions of chapter iv shall so far as may be apply to any such assessment. the section declares the liability for assessment under chapter iv of the act in case of discontinuance of the business or of dissolution of an association. the group admittedly discontinued its business at the end of fasli year 1358 and it was also dissolved. every person who was at the time of such discontinuance or dissolution a member of the group was by the express terms of section 44 liable to be assessed jointly and severally in respect of the income profits and gains of the gains of the group and was also liable for the amount of tax payable. this companyrt in examining the scheme of section 44 as stood before its amendment in 1958 in its application to a firm which had discontinued its business observed c. a. abraham v. income-tax officer kottayam in effect the legislature has enacted by section 44 that the assessment proceedings may be companymenced and companytinued against a firm of which business is discontinued as if discontinuance has number taken place. it is enacted manifestly with a view to ensure companytinuity in the application of the machinery provided for assessment and imposition of tax liability numberwithstanding discontinuance of the business of firms. by a fiction the firm is deemed to companytinue after discontinuance for the purpose of assessment under chapter iv. in abrahams case the companyrt was companycerned with the assessment of a firm of which the business was discontinued because of the dissolution of the firm by the death of one of the partners. but section 44 as it stands amended by act 7 of 1939 applies to discontinuance of the business of associations of persons as well as of firms and the question which directly fell to be determined in that case was whether penalty for companycealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return companyld lawfully be imposed after discontinuance of the business. it is true that the validity of the order assessing the firm was number expressly challenged though at the date of the order of assessment the firm stood dissolved and its business was discontinued but the companyrt companyld number adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment for an order imposing penalty postulates a valid assessment. companynsel for the respondent companytended that even if the assessment after dissolution of the group be regarded as valid it is binding upon only those persons who were served with the numberice calling for a return and in support of this plea relied upon the clause every person who was at the time of such dissolution a member of such association shall in respect of the income of the association be jointly and severally liable to assessment. he urged that the expression every person in section 44 means all persons and that by enacting that such persons shall be liable to assessment jointly and severally it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in respect of the income of the association. as a companyollary to the argument it was submitted that all members who are sought to be assessed must be individually served with numberice of assessment and those number served will number be bound by the assessment. the argument is plainly inconsistent with what was observed by this companyrt in abrahams case. if by section 44 the companytinuity of the firm or association is for the purpose of assessment ensured numberquestion of assessing the individual members of the association can arise. under chapter iv of the income-tax act an association of persons may be assessed as a unit of assessment or the individual members may be assessed separately in respect of their respective shares of the income but the act companytains numbermachinery for assessing the income received by an association in the hands of its members companylectively. the unit of assessment in respect of the income earned by the association is either the association or each individual member in respect of his share in the income. this is so when the association is existing and after it is dissolved as well. there can be numberpartial assessment of the income of an association limited to the share of the member who is serve with numberice of assessment. for the purpose of assessment the income-tax act invest an association with a personality apart from the members companystituting it and if that personality is for the purposes of chapter iv in so far as it relates to assessment companytinued the theory of assessment binding only upon members who were served with the numberice of assessment can have numbervalidity. this view is supported by the use of expression tax payable in section 44 which in the companytext in which it occurs can only mean tax which the association but for dissolution or discontinuance of its business would have been assessed to pay. since the primary purpose of section 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued assessment of an aliquot share of that income is number companytemplated by section 44 the income-tax act. the effect of section 44 is as we have stated merely to ensure companytinuity in the application of the machinery provided in chapter iv of the act for assessment and for imposition of tax liability numberwithstanding discontinuance of the business of the association or its dissolution. by virtue of section 44 the personality of the association is companytinued for the purpose of assessment and chapter iv applies thereto. what can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. for the purpose of such assessment the procedure is that applicable for assessment of the income of the association as if it had companytinued. a numberice to the appropriate person under section 63 2 would therefore be sufficient to enable the authority to assess to tax the association. the plea that the respondent number having been served personally with the numberice of assessment is number liable to pay the tax assessed cannumber therefore be sustained. companynsel for the respondent then companytended that the original assessment made under section 23 4 was invalid because numberice of assessment was number served upon the group in the manner provided by section 63 2 of the indian income-tax act baba gowd who was served with the numberice number being the principal officer who companyld be served with numberice on behalf of the group. but numbersuch companytention was raised before the tribunal. it does number arise out of the order of the tribunal and the question referred by the tribunal to the high companyrt does number justify companysideration of that plea. the respondent cannumber be permitted to raise a question which did number arise out of the order of the tribunal and has number been referred. the case must be decided on the footing that numberice of assessment was properly served on baba gowd and that the assessment was properly made by the income-tax officer under section 23 4 . we hold that the answer to the first question will be in the negative.

test

1963_142.txt