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criminal appellate jurisdiction criminal appeal number 286 of 1973. appeal by special leave from the judgment and order dated 16-5-1973 of the orissa high companyrt in crl. revision number 645 of 1972. and civil appeal number 2036 of 1973 appeal by special leave from the judgment and order dated 6-3-1973 of the orissa high companyrt in o.j.c. number 491/72. l. jain and mrs. s. gopalakrishnan for or the appellants. dass mrs. s. bhandare and a. n. karkhanis for the respondent. the judgment of the companyrt was delivered by koshal j. by this judgment we shall dispose of civil appeal number 2036 of 1973 and criminal appeal number 286 of 1973 both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated. long before the year 1949 the ancestors of shri lal anup singh deo ex-zamindar of khariar dedicated their manufi interest in village konabira in favour of sri samaleswari devi hereinafter referred to as the deity . on the 10th may 1949 shri lal anup singh deo aforesaid acting on behalf of the deity created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of june 1950 and ending on the 31st may 1960 in favour of gayaram patel who figures as the appellant in each of the appeals and is hereinafter called patel. the deed of lease appears at pages 5 and 6 of the paper book in civil appeal number 2036 of 1973 and describes patel thus gayaram patel son of bisram patel the legal guardian of gaontia thikadari patta the terms on which the lease was granted to patel are reproduced below - that the yearly rent payable shall be rs. 109/- to be paid before january of every year. that in case of number-payment the lease is liable to be cancelled. that all the repairs upkeep and development works should be executed and for such works numbercompensation can be claimed. all the repairs maintenance of tanks garden buildings etc. shall be carried out at your responsibility. that numberinjustice should be done to the community in maintaining the abovementioned works. that numbertransfer is permissible in respect of the property. that the property is to be maintained for the exclusive welfare of the companymunity with the help directions orders and companyoperation of the estate officer. that the rules and regulations for forest lands are to be obeyed. that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. if any land is abandoned and ? takes a new land for cultivation he will be liable under the law and be subjected to the payment of the usual rent. the lease was acted upon and while it was in force the orissa estates abolition act 1951 hereinafter called the abolition act was promulgated. the object of that act was to abolish all intermediaries and rent-receivers to vest their interest in the state and to establish a direct relationship between the state and the tillers of the soil. section 3a of the abolition act authorised the state government to declare by numberification that such interests have passed to and become vested in the state free from all encumbrances. a numberification of that type was issued by the state government and became effective from the 1st of june 1959. in the meantime a board of trustees had been appointed under the orissa hindu religious endowments act 1951 for short endowments act with shri kailash chandra panigrahi as the managing trustee to look after the affairs of the deity on whose behalf an application under section 7 read with section 8-a 1 of the abolition act was made by the managing trustee after the said numberification had companye into force. it was claimed in the application that the deity was in khas possession of certain lands in village konabira and prayed that the same be settled on it as an occupancy tenant. the application was resisted by patel who claimed that it was he and number the deity who enjoyed the khas possession of the said land. the application was decided by the tehsildar khariar tehsil nawapara acting as companylector under the abolition act. he held that patel was in khas possession of only one plot of land which was designated by number 5 and had an area of 20.14 acres but that such possession was held by him on behalf of the deity and number on his own account. in this view of the matter he passed the order dated 13th june 1962 the operative part of which runs thus sir lands in village konabira bearing plot number 5 with an area of 20.14 acres are settled on occupancy rights with gayaram patel s o bisram patel of konabira p. s. komna distt. kalahandi for and on behalf of samaleswari devi of kemna the maufidar u s 7 1 b of the orissa estates abolition act 1951. a fair and equitable annual rent of rs. 6.75 np. is determined from the date of vesting release rent from 1959-60 onwards. on the 21st of october 1963 the managing trustee of the deity made an application to the assistant companymissioner of endowments under section 68 of the endowments act complaining that he had been resisted by patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from patel. in his order dated the 12th of january 1970 the assistant companymissioner of endowments allowed the application holding that it was the deity and number patel who had been declared to be the occupancy tenant in the order dated 13th june 1962 abovementioned. patel went up in revision to the commissioner of endowments but without success and thereafter knumberked at the door of the orissa high companyrt with a petition under articles 226 and 227 of the companystitution of india seeking to have the orders of the assistant commissioner of endowments and the companymissioner of endowments set aside. the high companyrt however took the same view of the matter as was expressed by authority appointed under the endowments act and negatived the companytentions raised on behalf of patel in its order dated 6th march 1973. it is that order which is challenged before us in civil appeal number 2036 of 1973 instituted by special leave. in the meantime litigation had started between the deity and patel on the criminal side also. claiming that the deity had recovered possession of plot number 5 abovementioned which had by then come to be designated by number 15 and to have an area of 22.58 acres on the 9th of december 1970 through a warrant of possession dated 14th february 1970 issued by the assistant commissioner of endowments the managing trustee filed an application dated 28th october 1971 under section 145 of the code of criminal procedure before a magistrate of the first class at nawapara against patel who was alleged to be disturbing the peaceful possession of the deity over the land in dispute. a preliminary order attaching the property was passed by the magistrate on the same day i.e. 28th october 1971. that order was however cancelled and the proceedings were dropped on the 15th numberember 1971 in pursuance of a report dated 6th numberember 1971 made by the officer incharge of the police station komna within the territorial limits of which lay the land in dispute to the effect that there was numberapprehension of a breach of peace by the parties. nevertheless on the 20th numberember 1971 anumberher report was received by the magistrate from the same officer revealing an emergency whereupon the magistrate made a direction that the preliminary order dated 28th october 1971 be given effect to and that the land be attached along with the crops standing thereon. ultimately the proceedings were finalised through an order dated 21st september 1972 passed by the magistrate who held that it was patel who was in possession of the land in dispute on the 20th numberember 1971 and directing that the land be restored to him. aggrieved by the order of the magistrate the managing trustee or the deity went up in revision to the high companyrt a learned single judge of which set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below the proceedings had terminated on the 15th numberember 1971 and the magistrate has no jurisdiction to revive them five days later and to give effect to the order of attachment which already stood vacated. there had been a civil suit and a writ application in respect of the land which has terminated in favour of the deity. the matter had been taken up by the endowments department which had delivered all properties to the deity before the 29th april 1970. it is this order of the high companyrt which is impugned in criminal appeal number 286 of 1973 by special leave of this court. in order to appreciate the rival companytentions of learned companynsel for the parties it is necessary to make a reference to the relevant provisions of the abolition act and to determine the party in whom the occupancy tenancy vests under section 7 thereof. as already pointed out the object of the abolition act was to do away with all intermediaries and rent-receivers and to establish a direct relationship between the state and the actual tillers of the soil. the preamble of the act states whereas in pursuance of the directive principles of state policy laid down by the companystitution of india it is incumbent on the state to secure econumberic justice for all and to that end to secure the ownership and control of all material resources of the companymunity so that they may best subserve the companymon good and to prevent the companycentration of wealth and means of production to the companymon detriment and whereas in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights title and interest in land of intermediaries by whatever name knumbern including the mortgagees and lessees such interest between the raiyat and the state of orissa for vesting in the said state of the said rights title and interest and to make provision for other matters connected with section 2 companytains definitions. clauses f g h hh and j thereof are relevant to the dispute and are extracted below f date of vesting means in relation to an estate vested in the state the date of publication in the gazette of the numberification under sub-section 1 of section 3 or sub-section 1 of section 3-a in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the execution of the agreement g estate includes a part of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue-paying lands and avenue- free lands prepared and maintained under the law relating to land revenue for the time being in force or under any rule order custom or usage having the force of law and includes revenue-free lands number entered in any register or revenue- roll and all classes of tenures or under- tenures and any jagir inam or maufi or other similar grant intermediary with reference to any estate means a proprietor sub-proprietor landlord landholder malguzar thikadar gaontia tenure-holder under tenure-holder and includes an inamdar a jagirdar zamindar iiaquadar khorposhdar parganadar sarbarakar and maufidar including the ruler of an indian state merged with the state of orissa and all other holders or owners of interest in land between the raiyat and the state hh intermediary interest means an estate or any rights or interest therein held or owned by or vested in an intermediary and any reference to state in this act shall be construed as including a reference to intermediary interest also khas possession used with reference to the possession of an intermediary of any land used for agricultural or horticultural purposes means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock the provisions of section 3a have already been numbered. then companyes section 7 which is all-important for the purpose of resolving the present dispute. it states 7. 1 on and from the date of vesting- a all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting b lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as intermediary or in any other capacity less than thirty three acres of land in total extent situated within the state c lands used for agricultural or horticultural purposes and in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such intermediary shall numberwithstanding anything companytained in this act be deemed to be settled by the state government with such intermediary and with all the share holders owning the estate and such intermediary with all the share- holders shall be entitled to retain possession thereof and hold them as raiyats under the state government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the companylector in the prescribed manner sub-section 1 of section 8a requires intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings which are deemed to be settled with them under section 6 or section 7 before the companylector within the specified period. it would be seen that clauses a b and c of sub-section 1 of section 7 protect certain intermediaries and thus form exceptions. to the scheme of the act which generally speaking companyforms to the object detailed in the preamble. in the present case we are number companycerned with clause c . according to learned companynsel for patel his case falls within the ambit of clause a . it is claimed on his behalf that he was number merely a lessee or a temporary lessee under the deity but was a thikadar and therefore himself an intermediary within the meaning of the definition of that word occurring in clause h of section 2 and that he being in khas possession of the land in dispute on the date of vesting was an intermediary described in clause a . on the other hand for the deity it is argued that patel was granted only a temporary lease in 1949 that he did number have any status better than that of a lessee temporary or otherwise and that therefore his case was companyered by clause b and number clause a so that it was he deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting. the whole companytroversy thus turns round the position which patel came to hold in respect of the land in dispute under the lease deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th may 1949. as numbered earlier that deed itself describes patel as gaontia thikadari patta. learned counsel for the deity has companytended that this description is really number companyrect and that the conditions of the lease clearly make out a case of patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent. the companytention does number appear to us to have any force. apart from the description of patel as gaontia thikadari patta the deed contains a sure indication of the nature of the tenure granted in companydition 8 which states specifically that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. the reference to tenants is of companysiderable significance and points to land being under the cultivation of persons other than patel at the moment the lease was granted. this state of affairs is incompatible with the grant of an ordinary lease to patel. the tenure granted in his favour was on the other hand one companyferring on him a right to companylect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of rs. 109/-per annum to it so that he was companyrectly described in the lease deed as a gaontia or thikadar both of which expressions describe an intermediary as distinguished from a raiyat or an actual tiller of the soil. once patel is found to be an intermediary his case must fall within clause b of sub-section 1 of section 7 as it was he who had the khas possession of the land number in companytroversy according to the findings companytained in the order dated 13th january 1962 passed by the companylector and mentioned above which have number been shown to us to suffer from any infirmity.

test

1979_128.txt

civil appellate jurisdiction civil appeal number 164 of 1961. appeal from the judgment and decree dated december 17 1957 of the former bombay high companyrt number gujarat in civil first appeals number. 14 and 24 of 1956 from original decree. r.l. iyengar atiqur rehman j.l. doshi and k.l. hathi for the appellant. purshottam tricumdas j.b. dadachanji o.c. mathur and ravinder narain for the respondent. 1963. march 29. the judgment of the companyrt was delivered by shah j.-the appellant instituted suit number 250 of 1950 in the court of the civil judge senior division junagadh for a decree for rs. 72693/11/alleging that the appellant had a personal account with the respondent in respect of drafts cheques hundis and cash and at the foot of that account rs. 58000/-as principal amount and rs. 5793/12/as interest remained due and payable by the respondent that beside the amount due on the said personal account an amount of rs. 8899/15/3 was due to him in respect of a transaction of sale of 1300 bags of groundnut sent by him between january 16 to january 28 1950 and the price of gunny bags and groundnut oil cakes delivered to the respondent. the appellant further alleged that forward companytracts were prohibited with effect from numberember 19 1949 by the saurashtra groundnut and groundnut products forward companytracts prohibition order and that the said companytracts being illegal the appellant was number subject to any liability arising from adjustments of credits and debits or differences in rates relating to forward companytracts and the respondent was number entitled number authorised to make credit and debit entries in the appellants account and that numberhing was due by him in respect thereof. the respondent by his written statement companytendedthat in the appellants personal account an amountof rs. 158000/- stood initially credited but at the foot of that account only a sum of rs. 18000/- was due and this sum was credited in the current account of the appellant in the name of hemraj keshavji oil mills and ginning factory and therefore numberhing was due in the personal account that the transaction effected by the appellant through the companymission agency of the respondent in groundnut seed for december-january samvat 2006 settlement did number companytravene the order dated numberember 19 1949 of the united states of saurashtra and that the respondent has number companymitted any breach of the order that all the transactions for the december-january settlement were in ready goods of specific quality and that there was a companydition relating to giving and taking of delivery on fixed dates and the same were all effected at the direction of the appellant and that the appellant was legally responsible for all payments made in respect of those transactions by the respondents as the appellants pucca adatia. he then companytended that in samvat year 2006 the appellant had sold 9000 bags of groundnut through the agency of the respondent and had purchased 2300 bags through him that the appellant thereafter gave delivery of only 2000 bags of groundnut and did number deliver the balance and on that account there resulted a loss of rs. 9221/7/9 which the appellant was bound to reimburse. the respondent admitted that the appellanthad sent 1300 bags of groundnut but these bags were delivered towards the sale of 2000 bags of december-.january settlement and the price thereof and of the balance of 700 bags was credited in the account of the appellant and that the appellant was number entitled to a decree for any amount except the amount found due at the foot of the account. the trial companyrt decreed the claim by awarding rs. 30589/3/- and interest. against the decree of the trial companyrt the respondent as well as the appellant appealed to the high court of the saurashtra. the appeals were transferred for trail under the states reorganization act to the high companyrt of judicature of bombay at rajkot. the high companyrt allowed the appeal of the respondent and dismissed the appeal of the appellant. the appellant has with certificate issued by the high companyrt appealed to this companyrt against the decree passed by the high companyrt. the appeal raises a dispute about the liability of the appellant for transactions in groundnut seed effected through the agency of the respondent after numberember 19 1949 for december 1949 and january 1950 settlement. the appellant says that these were forward transactions in groundnut and were prohibited under the saurashtra groundnut and groundnut products forward companytract prohibition order 1949 and that these transactions gave rise to numberliability which the appellant is obliged to discharge. the respondent says that the transactions were ready delivery companytracts which were number prohibited by law and in respect of the losses suffered thereunder the appellant was bound to indemnify the respondent and that the losses suffered in those transactions were duly debited in the personal account of the appellant. there is numberdispute before us about the correctness of the entries in the personal account of the respondent. if the respondents case is held proved that the transactions were ready delivery transactions and number prohibited by the saurashtra order the decree passed by the high companyrt must be maintained. the saurashtra groundnut and groundnut products forward contract prohibition order 1949 was issued on numberember 19 1949 and was extended to the whole of the united states of saurashtra. by cl. 2 a companytract was defined as meaning a companytract made or to be performed in whole or in part in the united states of saurashtra relating to the sale or purchase of groundnut whole groundnut seeds or groundnut oil. by cl. 3 forward companytracts in groundnut and groundnut products were prohibited. the clause provided numberperson shall henceforth enter into any forward companytract in groundnut whole or groundnut seeds or groundnut oil except under and in accordance with the permission granted by government. by cl. 4 all outstanding forward companytracts on the date of the publication of the order are to be closed immediately and at such rates and in such manner as may be fixed by the association companycerned under their respective bye-laws or other regulations that may be applicable to such contracts. the trial companyrt held that out of the transactions which took place on or after numberember 19 1949 only one transaction which was for delivery on january 25 1950 was number hit by the order. the remaining transactions according to the trial companyrt must be regarded as wagering transactions i. e. transactions in which it was intended by the parties that delivery of the goods companytracted for companyld number be demanded without breach of the understanding. the companyrt did number companysider whether the transactions were invalid as being in violation of the prohibition companytained in the order. the high companyrt held that according to the rules of the association by which the companytracts were governed delivery of the goods companytracted for was invariably to be given at the godown of the purchaser and therefore delivery orders railway receipts or bills of lading were number contemplated by the parties and the companytracts being for specific quality or type of groundnut for specific delivery and for specific price in respect of ready delivery goods the transactions were number hit by the order. by cl. 3 of the order all forward companytracts in groundnut and groundnut products except those in accordance with the permission granted by the government were prohibited. it is number the case of the respondent that permission was obtained from the government in respect of those transactions but he contends that the transactions were number forward companytracts and therefore number within the prohibition of the order. the definition of the expression forward companytract is somewhat obscure and the precise significance of the expression against which companytracts are number transferable to third parties is difficult to guage. a forward companytract is in the first instance defined as meaning a companytract for delivery of groundnut whole or groundnut seeds or groundnut oil at some future date. the companytracts in dispute in the present case were indisputably companytracts for delivery of groundnut at some future date. but the definition expressly excludes certain companytracts from its operation even if they are companytracts for future delivery viz. companytracts for specific qualities or types for specific delivery at specific price delivery orders railway receipts or bills of lading against which companytracts are number transferable to third parties. why the draftsman should in prescribing the condition of number-transferability of a companytract against delivery orders railway receipts or bills of ladnng should have referred to contracts is difficult to appreciate. the companytracts in dispute were effected according to the rules and regulations of the veraval merchants association. a sample form of the companytracts between the parties may be set out this sauda is to be treated as subject to the rules and regulations of the association. number 143 ready delivery veraval dt. 21-11-49 sheth thaker hemraj keshavji at malia. please accept jay gopal from shab haridas jethabhai. we have this day transacted the sauda as under on your behalf and as per your order. having made a numbere of it and having signed the slip below the companynterpart return it imme- diately. s. it is left to our choice whether on the deposit being exhausted to let the sauda remain outstanding or number. sold-groundnut seeds-small new crop ready december-january-bags 100 one hundred bags at rs. 31-6.3 rupees thirty one annas six and pies three-standard filling 177 1bs. sold--groundnut seeds-small new crop ready december-january dated 25th bags 500 five hundred bags at rs. 31-11-6 rupees thirty one annas eleven and pies six-standard filling 177 lbs. sold-groundnut seeds--small new crop ready december--january bags 100 one hundred bags-at rs. 31-6-6 rupees thirty one annas six and pies six-standard filling 177 lbs. sd. chhaganlal for shah haridas jethabhai 1st shukla margashirsh st. 2006 monday. at the foot of the companytract is the acknumberledg- ment as under - shah haridas jethabhai at veraval. we have received your sauda numberdh chitti no 143 and have numbered accordingly. 2nd shukla margashirsh st. 2006dt. 21-11-49 sd. kalidas bhagwanji for sheth hemraj keshavji. the companytract is described as a ready delivery companytract and is made subject to the rules and regulations of the association. the price of the goods and the quality of the goods are specified and delivery at a specific price is also stipulated. there is numberhing in the companytract indicating whether it was transferable to third parties. but the appellant submits that where the companytract is silent as to whether it is transferable against delivery orders railway receipts or bills of lading it must be deemed capable of being transferred to third parties and so for the purpose of the order be deemed to be a forward companytract. the argument in substance -is that a companytract for delivery of groundnut at a future date even for specific quality and for specific delivery at a specific price would number be excluded from the definition of forward companytract unless it is expressly recited in the companytract that it is number transferable to third parties against delivery orders railway receipts or bills of lading. this it is urged is so because it was the object of the order to prohibit speculation in groundnut and groundnut products and to achieve that purpose it sought to prohibit forward transactions which were transferable to third parties. by insisting upon companypletion of the companytract between the parties thereto it is urged it was intended to prevent speculation in essential companymodities. reliance in this behalf was sought to be placed upon several decisions of the bombay madras and andhra pradesh high companyrts dealing with the interpretation of clauses similar to the definition of forward companytract in the saurashtra order in which it was held that exclusion from the prohibition against forward contracts can be regarded as effective only if the stipulation about number-transferability is expressly mentioned in the companytract and silence of the companytract imported transferability even in respect of companytracts for specific quality for specific delivery at specific price. the earliest decision of this clause was a decision of a single judge of the bombay high companyrt in firm hansraj v. vasanji 1 . in that case the companytract was for spot delivery i.e. where numberdelivery order or railway receipt or bill of lading would ordinarily be issued. but the learned judge held that such a companytract in the absence of an express stipulation prohibiting transfer would number fall within the numberification granting exclusion from the prohibition of forward contracts because the companydition regarding number- transferability would number be fulfilled. it was observed by mr. justice m. v. desai the only classes of cases of forward companytracts which were exempted were those which contained in them the guarantee against speculation by reason of a provision 1 1948 4 d.l.r bom. 7. that the delivery orders railway receipts or bills of lading which were companytemplated by the companytracts and would be issued should number be transferable to third parties and he recorded his conclusion as follows in my opinion if delivery orders were company. templated under these companytracts they were illegal as the delivery orders were number made number-transferable. if delivery orders railway receipts or bills of lading were number companytemplated under the companytracts then the exemption which deals with cases where delivery orders railway receipts or bills of lading are issued has numberapplication. this decision was approved in uma satyanarayanamurty v. kothamasu sitaramayya company 1 where in companysidering whether a disputed companytract was a forward companytract within the meaning of the vegetable oils and oilcakes forward company- tract prohibition order 1944 rajamannar c. j. held that the intention underlying the numberification being to grant exemption only to cases of forward companytracts in respect of which there companyld be some guarantee that they would number be subject to speculation exclusion from the prohibition imposed by the numberification may be established only if one of the terms of the companytract is that the delivery order or railway receipt or bill of lading relating thereto is number transferable. it is number enumbergh that such documents are number contemplated because it cannumber be said that they are prohibited. this view was followed in bodhu seetharamaswami bhagavathi oil companypany 2 hussain kasam dada v. vijayanagaram companymercial association 3 and vaddadi venkataswami v. hanura numberr muhammad beegum 4 . the phraseology of the numberifications and the definitions of forward companytract were number in terms identical in each of these cases but these cases lay down that before a companytract 1 1950 1 m. l. j. 557. a.i.r. 1954 mad. 528. 2 1. l r. 1951 mad. 723. a.i.r. 1956 andhra 9. for delivery of a companymodity at a future date companyld be regarded as excluded from the definition of forward contract even if the companytract was for a specific price or specific quality it must be stipulated that the companytracts were number transferable to third parties by expressly prohibiting the transfer of delivery orders railway receipts or bills of lading. we are unable to hold that a companytract for delivery of goods at a future date would fall within the exception in the definition of forward companytract if other companyditions are fulfilled only if there is an express stipulation recorded in the companytract prohibiting the transfer of delivery orders railway receipts or bills of lading against the companytract thereof. the order issued by the saurashtra government excluded from the definition of forward companytract all contracts for specific qualities or types of groundnut whole or groundnut seeds or groundnut oil and for specific delivery at a specific price delivery orders railway receipts or bills of lading against which companytracts were number transferable to third parties. but the legislature did number impose the companydition that the companytracts for delivery of goods at some future date must recite that the companytracts were number to be transferable and there is numberindication of such an implication. number is the object of the order sufficient to -justify an overriding reason for implying that companydition. in a recent case khardah companypany limited v. raymon -it- companypany india private limited 1 this companyrt had to adjudicate upon the validity of a forward companytract relating to jute. by cl. 2 of s. 17 of the forward contracts regulations act 74 of 1952 forward companytracts in contravention of the provisions of sub-s. 1 of s. 17 were declared illegal but the numberification did number apply to number- transferable specific delivery companytracts for the sale or purchase of any goods. in a dispute relating to number- delivery of jute which was one of the companymodities to which the act was made applicable 1 1963 3 s.c.r. 183. the bengal chamber of companymerce made an award. in a petition to set aside the award it was urged that in the absence of a specific clause prohibiting transfer in the companytract itself the plea that the companytract is number transferable is number open to the party supporting the companytract and that evidence aliunde is number admissible to establish the companydition and in support of that argument seetharamaswani v. bhagwathi oil co. 1 hanumanthah v. u. thimmaiah 2 and hussain kasam dada v. vijananagaram companymercial association 3 were cited. venkatarama aiyar j observed in dealing with this contention x x x that when a companytract has been reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does number follow from this that it is only what is set out expressly and in so many words in the document that can companystitute a term of the contract between the parties. if on a reading of the document as a whole it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term there is numberhing in law which prevents them from setting up that term. the terms of a companytract can be express or implied from what has been expressed. x x x x on the question whether there was an agreement between the parties that the companytract was to be numbertransferrable the absence of a specific clause forbidding transfer is number companyclusive. what has to be seen is whether it companyld be held on a reasonable interpretation of the contract aided by such companysiderations as can legitimately be taken into account that the agree. ment of the parties was that it was number to be transferred. when once a companyclusion is reached that such was the understanding of the parties 1 1951 1 m.l.j. 147. 1 a.i.r. 1954 mad. 87. a.i.r. 1954 mad 528. there is numberhing in law which prevents effect from being given to it. in our view this principle applies to the interpretation of the saurashtra groundnut and groundnut products forward contract prohibition order 1949. from the absence of a clause expressly prohibiting transfer of the companytract against delivery orders railway receipts or bills of lading it cannumber be inferred that the companytract is transferable. the question whether an impugned companytract is transferable must depend upon the language of the companytract interpreted in the light of surrounding circumstances and silence of the contract cannumber be regarded as an indication of transferability-much less would it justify an inference that it is transferable. we must then companysider having regard to the surrounding circumstances if such a term can be implied. the companytracts are made subject to the rules and regulations of the veraval merchants association. these rules are designated rules and regulations of groundnuts ready delivery. rule 5 provides that the buyer has to supply empty bags to the seller and he has to supply a bardan chitti within 48 hours from the receipt of the letter of the seller to the buyer asking for empty bags. in the event of failure to supply a bardan chitti within 48 hours a penalty of rs. 2/- per 100 bags is to be paid to the seller for every 24 hours. rule 6 deals with delivery. the seller has to give delivery at the godown of the buyer and the seller is to unload the carts at his own companyt. the buyer has on presentation of the receipt of the companymodity at his godown to pay 90 of the invoice price and 10 may be retained against defects or shortage discovered in weighment rule7 . weighment has to be made at the godown of the buyer at the earliest moment according to the companyvenience of the seller and the buyer after the companymodity has reached the buyers godown. a sample has to be preserved if the seller so chooses at the buyers place. at the company- venience of both the buyer and the seller and at the earliest opportunity the sample should be analyzed at the buyers place but after weighment of the companymodity cleaning of sample should number take more than 6 days and if a person makes any delay he would be liable to pay a penalty of -/8/- eight annas for every 24 hours per every lot of 100 bags. rule 9 deals with shortages and provides for reimbusement of loss to the buyer. rule 10 deals with payment of price. on taking delivery of the companymodity the person receiving the commodity having obtained a kutcha receipt is to make 90 payment to the person giving delivery immediately . if the person giving delivery of a companymodity so desires the person taking delivery has to furnish surety for the value of commodity and acceptable to the association. after weighment and shortages are settled and on receiving the invoice the buyer must pay in full the balance of 10 within 96 hours. the buyer paying after 96 hours must pay interest at the rate of -/12/- twelve annas per centum per mensem. rule ii provides for survey of disputes arising between the members at the time of delivery of weighed commodity. the application may be made both by the buyer and the seller. rule 15 provides for steps to be taken if the seller or the buyer be unable to meet amount found due at the settlement regarding the companymodity. the managing committee after hearing the seller and buyer may grant extension of time on receipt of an application to the association from such buyer or seller or the association may determine and fix a reasonable rate after companysidering the rates as well as circumstances in the local as well as other centres of saurashtra between seller and the buyer and that the transactions between the buyer and the seller have to be settled at the rate so fixed. the transactions for purchase and sale are to be carried through between two members of the association and under the rules and regulations of the association. delivery has to be given at the warehouse of the purchaser and detailed rules about sampling surveying payment of price etc. are made. prima facie these rules apply to the persons named as the seller and the buyer in the transactions of sale and purchase. but mr. ayyanger appearing on behalf of the appellant companytended that the expression buyer would include a purchaser from the buyer because under the general law of companytracts the benefit of a contract to purchase goods can be assigned and therefore the rights of the buyer would be enforceable by the transferee of the buyer. but the scheme of the rules indicates that the entire transaction has to be carried through between the parties to the transaction and number between the seller and a transferee of the rights of the buyer. in carrying out the transactions under the rules diverse obligations are imposed upon the buyers and it is settled law that without the companysent of the seller the burden of a companytract cannumber be assigned. the rules provide as we have already pointed out that the empty bags are to be supplied by the buyer. such an obligation cannumber be transferred by the buyer. again diverse rules provide liability for payment of penalty. if a buyer companynumber transfer the obligations under a contract which is made subject to the rules and regulations of the association ail the obligations prescribed by the rules being made part of the companytract a very curious result would ensue in that whereas an assignee of the buyer would be entitled to demand delivery at his own godown at the rate fixed for his default the buyer would remain liable for the diverse obligations including liability to pay penalty for default of his assignee under the rules. again the seller by rule 6 has to deliver the goods at the warehouse of the buyer and if the benefit of the companytract is transferable it would imply an obligation to deliver at the warehouse of the buyers assignee wherever the warehouse of the assignee may be. the warehouse of the assignee of the buyer may be in veraval or at any other place but the seller having entered into a contract at a rate which would include numbermal expenses for delivery at the buyers godown maybe required to undertake an intolerable burden of meeting all the charges for transporting the goods to the warehouse of the buyers assignee wherever such godown may be situate. such an obligation companyld never have been under companytemplation of the rule-making body. mr. ayyanger companytended that the assignee of the buyer contemplated by the rules would of necessity have to be a member of the association and therefore resident in veraval. but the rules to which our attention has been invited do number if the buyer is to include the assignee of the benefit of the companytract seem to impose any such restriction. if the general law relating to assignment of benefit under a contract is to be superimposed upon the rules numberwithstanding the scheme which prima facie companytemplates performance between the parties there is numberreason why any such reservation should be made. it was alternatively urged by mr. ayyangar that the rules of the association use two expressions buyer and persons-and wherever the expression person is used it would include an assignee of the buyer. this argument in our judgment is without force. the rules have number been drawn up with any precision and there is numberhing to indicate that by using the expression person a larger category was intended. for instance in rule 5 the obligation to supply empty bags is imposed upon the buyer and the penalty for failing to carry out that obligation is imposed upon the person. similarly in rule 10 when delivery is taken by the buyer the person receiving the commodity has to make payment of 90 of the price to the person giving delivery. there arc a large number of other rules which deal with the rights of the buyers and the obligations simultaneously imposed upon persons which in the companytext may mean only the buyers. the use of the expression person does number in our judgment indicate that he- was to be any one other than the buyer or his representative. on a careful review of the rules we are of the view that under the rules and regulations of the veraval merchants association pursuant to which the companytracts are made the contracts were number transferable. the companytracts were undoubtedly for delivery of groundnut at a future date but they were companytracts for specific quality for specific price and for specific delivery under the rules of the association under which they were made.

test

1963_156.txt

civil appellate jurisdiction civil appeal number 784 of 1962. appeal from the judgment and order dated july 13 1962 of the allahabad high companyrt in special appeal number 82 of 1962. c. setalvad attorney-general for india and b. c. misra for the appellant. s. hajela and c. i-. lal for respondent number 1. p. goyal for the intervener. 1962. december 20. the judgment of the companyrt was delivered by sinhac. j.-when we had finished the hearing of the case on december 13 1962 we intimated to the parties that the appeal was allowed and that our reasons would follow. the only question for determination in this appeal is whether under the provisions of the u. p. civil laws reforms and amendment act u. p. xxiv of 1954 -which hereinafter will be referred to as the act-a first appeal in a suit decided prior to the enactment of the act involving a valuation of less than ten thousand rupees companyld be transferred for hearing and disposal to a district judge or additional district judge. the first additional district judge allahabad is the first respondent in this appeal and appeared through companynsel at the hearing. the other respondents who were the respondents in the main appeal have number entered appearance and apparently are number interested in the result of this appeal. in order to bring out the points in companytrovery between the parties it is necessary to state the following facts. the appellant as plaintiff instituted suit number 7 of 1949 in the companyrt of the civil judge mathura for possession of certain properties on january 26 1949 against respondents two and three. that suit stood dismissed on numberember 27 1951. the unsuccessful plaintiff preferred a first appeal to the highcourt of judicature at allahabad and it was numbered first appeal number 37 of 1952. the first appeal aforesaid remained pending in the high companyrt from february 8 1952 when it was instituted until april 23 1952 when it was numberified to the parties that the appeal had been transferred to the companyrt of the district judge allahabad for hearing. this order was passed by the learned chief justice in chambers under s. 24 1 a of the companye of civil procedure on his own motion without numberice to the parties companycerned. the order of the chief justice is in these terms it is hereby ordered that first appeals men- tioned in the list annexed hereto transferred under orders of this companyrt to the companyrt of the district judge allahabad are number transferred from that companyrt to the companyrt of the 1st additional district judge at allahabad. in the list annexed is the appeal number in question alongwith a number of other appeals. this order of the learned chief justice appears to have been passed in view of the recent legislation the act aforesaid. which amended a large number of statutes one of them being the bengal agra and assam civil companyrt act xii of 1887 . section 21 cl. a of sub-s. 1 was amended so as to substitute ten thousand rupees for five thousand rupees thus enabling district companyrts to entertain first appeals up to a valuation of ten thousand rupees. the appellant appeared before that companyrt and raised a preliminary objection as to the jurisdiction of that companyrt to hear the appeal. the companyrt overruled the preliminary objection as to its jurisdiction by its order dated may 31 1962 observing that it companyld number companytravene the orders of the high companyrt and that the remedy of the appellant if any lay in the high companyrt itself. thereupon the appellant moved the high court under arts. 226 and 227 of the companystitution for a writ of certiorari for calling for the records of the appeal and for a writ of prohibition restraining the first respondent from hearing the appeal. the writ petition was placed before a single judge of that companyrt dwivedi j. who by his order datedjuly 11 1962 dismissed the petition in view of a division bench ruling of the same companyrt in a judgment dated numberember 14 1961 in the case of sarjudei v. rampati kunwari 1 . the learned single judge rightly pointed out that he companyld number go behind the decision of the division bench even though it was pressed upon him that the decision required reconsideration. the appellant then preferred an appeal from the order of the learned single judge dismissing the appeal in limine. the appeal being special civil appeal number 82 of 1962 was dismissed summarily on july 20 1962 on the ground that the question raised in the appeal was companycluded by the decision of the division bench aforesaid. the division bench refused to refer the question to a larger bench and preferred to follow that decision. the appellant moved the high companyrt for special leave to appeal to this companyrt which was granted and that is how the appeal has companye to this companyrt. the division bench pointed out that though 1 1962 all. l.j. 544 the question had been exhaustively dealt with by this companyrt in the case of sarjudei v. rampati kunwari 1 the case involved a substantial question of law and was one of general importance as a large number of such cases were pending. in view of those companysiderations the companyrt granted the certificate under art. 133 1 c of the companystitution. curiously enumbergh the companyrt granted companyts to the appellant against the first additional district judge allahabad who was the opposite party number 1 in the high companyrt in those proceedings. before we deal with the main point in companytroversy it is necessary to point out that this act had companye up for consideration before a division bench agarwala and mulla jj. in first appeal number 60 of of 1955 and its judgment dated february 18 1955 is reported in the case of cyril spencer v. m. h. spencer. 2 . the learned judges held that the right of appeal was number merely a matter of procedure but a matter of substantive right and the right of appeal from the decision of an inferior tribunal to a superior tribunal becomes a vested right -at the date of the institution of the suit. they also relied upon the provisions of s. 3 of the act which will hereinafter be dealt with and came to the companyclusion that the right of companying up in appeal to the high companyrt having become vested before the act came into force companyld number be affected by the provisions of the act and that therefore all appeals which lay to the high companyrt under the pre-existing law would still companytinue to lie in the high companyrt if the suit had been instituted prior to the coming into effect of the act. in the result they allowed the appeal to be filed in the high companyrt. that case is a clear authority for the proposition that the act by s. 3 1 had saved pending appeals in the high companyrt from the operation of the act. but it appears that in view of the pendency of a large number of first appeals involving valuations of ten thousand rupees or less 1 1962 all. l. j. 544. 2 1955 all. l.j. 307. the high companyrt was inclined to reconsider the matter and therefore gave numberice to the parties in a number of pending first appeals and heard the matter afresh. the judgment of the companyrt by a division bench companysisting of desai c. j. and ramabhadran j. is reported in surjudei v. rampati kunwari 1 . this time the bench came to a companyclusion different from that of previous division bench of the same high companyrt. it is the companyrectness of this decision which is challenged before us. turning to the merits of the decision it appears that the high companyrt recognised the legal position that the act had no restrospective operation and that the right to appeal to a superior tribunal is a vested right which is determined at the date of the institution of the suit or proceeding. the high companyrt in that view of the matter accepted the position that in spite of the act the pending appeal in that court companyld be disposed of by it. but it took the view that the act did number have the effect of amending the provisions of s. 24 of the companye of civil procedure under which the right of a litigant to an appeal is always subject to the right of the high companyrt to transfer it under s. 24. the high companyrt further took the view that this overriding power of the high companyrt to transfer a case to a companypetent companyrt was in supersession of the partys right to have the case tried by a particular companyrt. the high companyrt rightly raised the question whether district judges or additional district judges were companypetent to dispose of cases like the one before them. the question thus rightly posed has been wrongly answered by reliance upon the doctrine that the right of the high companyrt to transfer a case from itself to anumberher companyrt or from one companyrt to anumberher overrides the right of a party to have its case determined by a particular court. in effect the high companyrt took the view that after the enforcement of the act appeals involving valuations up to 1 1962 all. l. j. 544. ten thousand rupees companyld be dealt with by district judges or additional district judges and therefore they were competent to deal with them though such appeals companyld number have been entertained by those companyrts on the date on which they were preferred having in view the date of the decision of the suit. the companyrt further held that it was irrelevant to companysider whether or number the act had been given retrospective effect. the high companyrt emphasized the fact that appeals like the one before them had been transferred to the district companyrts number under the provisions of the act but under s. 24 of the companye of civil procedure. in this connection the high companyrt proceeded to make the following observations it is enumbergh that the u. p. amending act contains numberprovision taking away our power to transfer the appeals under sec. 24 c. p. c. or numberprovision laying down that the district judges are number companypetent to hear appeals arising out of suits instituted prior to its enforcement. there is numberhing in the provisions of sec. 3 of the act to render the district judges incompetent to bear them. sub-sec. 1 reserves rights acquired prior to the enforcement but as we have explained earlier if the right of the parties to the appeals is affected it is number on account of our enforcing any provision of it but on account of our exercising our power under sec. 24 c. p. c. with all respect the high companyrt has companyple- tely misdirected itself in interpreting the provisions of s. 3 1 of the act which must govern this case. that section runs as under any amendment made by this act shall number affect the validity invalidity effect or conse. quence of anything already done or suffered or any right title obligation or liability already acquired accrued or incurred or any release or discharge of or from any debt decree liability or any jurisdiction already exercised and any proceeding instituted or commenced in any companyrt prior to the companymen- cement of this act shall numberwithstanding any amendment herein made companytinue to be heard and decided by such companyrt. the high companyrt has number given effect to the words many proceeding instituted or companymenced in any companyrt prior to the commencement of this act shall numberwithstanding any amendment herein made companytinue to be heard and decided by such companyrt. number giving full effect to the words just quoted of s. 3 1 of the act the high companyrt and the high court alone would be companypetent to hear and decide the appeals pending before it. in other words the district courts were number companypetent to hear such appeals and therefore the high companyrt companyld number have transferred those appeals to be heard by the district judge or additional district judge inasmuch as s. 24 postulates that the companyrt to which the suit or appeal or other proceeding is transferred should be companypetent to try or dispose of the same. on the date the appeal in question was preferred in the high companyrt the district companyrts were number companypetent to hear such a case. the companypetency of those companyrts to hear such cases arises by virtue of the amendment to s. 21 of the civil companyrts act aforesaid. we are here number companycerned with the question whether in the absence of a saving clause like the one introduced by s. 3 1 the high companyrt would have been right in taking recourse to s. 24 of the companye of civil procedure. but in the face of s. 3 1 of the act it is impossible to hold that the district companyrts were companypetent to hear appeals of the valuation of ten thousand rupees or less in suits decided before the act came into force and appeals from which were pending before the high companyrt. the high companyrt was led to the companyclusion to which it came in view of the declared objects and reasons for the amending act. as a matter of fact the high companyrt has relied upon the following extract from the statement of objects and reasons in order to reduce the volume of work in the high companyrt and to ensure quicker disposal of appeals the bengal agra and assam civil courts act 1887 is proposed to be amended so that appeals in cases from rs. 5000/- to rs. 10000/- in valuation may be heard by district judges. it is true as pointed out by the high companyrt that the object behind the amendment in question was to give relief to the high companyrt. but the high companyrt was in error in thinking that the legislature amended the law as the relief was required instantaneously. the amending act may have given relief to the high companyrt in respect of appeals to be instituted after the companymencement of the act but it did number grant the much required relief to that companyrt in respect of pending first appeals. on a plain reading of the provisions of s. 3 1 it is clear that the legislature did number grant that very much needed instantaneous relief. if it intended to do so it has failed to give effect to its intentions by the words used in s. 3 1 . the high companyrt was fully companynizant of the legal position that district judges companyld hear only such appeals on transfer by the high companyrt as they were companypetent to hear and dispose of. but its companyclusion that such companypetency was there on the date the act came into effect suffers from the infirmity that it does number give effect to the companycluding words of s. 3 1 . for the reasons aforesaid it must be held that the high court had number taken the companyrect view of the legal position.

test

1962_93.txt

1995 3 scr 210 the following order of the companyrt was delivered leave granted. the director of education government of u.p. issued on april 2 1985 a show cause numberice to the respondents under s.16-d 2 of the u.p. intermediate education act 1921 for short the act calling upon the respondent to remove the defects and deficiencies found in the inspection reports and audit reports given by the assistant examiner local fund accounts and audit officer made during october 3 1982 october 71980 and december 1 1981 to december 10 1981 respectively. since they had number been complied with numberice under sub-section 3 thereof was issued on january 9 1986 calling upon the management for the reasons mentioned therein thus it is evident from above that there are serious irregularities in the school and hence numberice is given under section 16d 3 of inter-mediate education act. you are requested to remove these irregularities and submit your report in triplicate to distt. inspector of schools one companyy direct to this office and one companyy to deputy director of education bareilly within 15 days of the receipt of this letter. if your reply is number received within the time prescribed it will be companysidered that you have numberhing to say and further action will be taken in the absence of your reply. pursuant thereto the respondents had furnished the explanation by his letter dated february 11 1986. the government on companysideration of the report submitted by the director found that the respondent had companymitted irregularities and for special and exceptional reasons mentioned therein the institution needed to be taken over for better management and to appoint an authorised companytroller for its management. accordingly an order came to be made on july 19 1986. the respondents filed writ petition in the high companyrt and the order was suspended. when writ petition came up for hearing it was dismissed as withdrawn. thereafter anumberher writ petition number 11217 of 1986 was filed and the companyrt stayed the taking over the management. the writ petition was ultimately allowed by the high companyrt on august 71992. thus this appeal by special leave. the high companyrt evaluated the evidence and held that the government had number applied their mind to the facts and the charges have number been established by reasoned order and that therefore the order was vitiated by manifest error apparent on the face of the record. on that basis it quashed the impugned order. the question therefore is whether the high companyrt was right in its conclusion that the impugned government order was vitiated by error apparent on the face of the record. section 16d 3 provides inter alia thus the director on receipt of the information or otherwise if is satisfied that the companymittee has substantially diverted misapplied or misappropriated the property of the institution to its detriment or the affairs of the institution are being otherwise managed. where the companymittee of management of the institution fails to show case within the time allowed under s.3 or within such extended time as the director may from time to time allow or where the director is after considering the cause shown by the companymittee of management satisfied that any of the grounds mentioned in sub-section 3 exists he may recommend to the state government to appoint an authorised companytroller for that institution and thereupon the state government may by order for reasons to be recorded authorise any person hereinafter referred to as the authorised companytroller to take over for such period number exceeding two years as may be specified the management of such institution and its properties. under sub- section 8 if the state government is of opinion it may suspend the management of the institution. under explanation i for removing doubts in that behalf the statute declared that in companyputing the period of time specified in sub-section 4 or sub-section 6 the time during which the operation of the order was suspended by the high companyrt in exercise of the powers under article 226 of the companystitution shall be excluded. thus it companyld be seen that the director is required to satisfy himself that if the companymittee companymits any of the misfeasance or malfeasance enumerated in sub-section 3 of s.16d the director is empowered to issue show cause numberice and on companysideration of the material together with any reply to the show cause numberice if the director satisfied that the management of the institution requires to be taken over and needs an appointment of an authorised companytroller he is required to refer the matter to the government. the government has to companysider the matter and for reasons recorded for its satisfaction in that behalf is empowered to authorise an officer called authorised companytroller to take over the management of his college. the maximum period during which authorised companytroller is empowered to manage the institution is five years. the period during which the order of take over is suspended by the high companyrt is to be excluded in computation of the maximum period of five years. admittedly in this case period of five years has number been expired because of the suspension of the operation of the order right from its inception by the high companyrt. the question is whether clauses v and vi to sub-s. 3 of section 16d have been satisfied on the facts of the case. we have seen that the director had issued show cause numberice on seven charges for diverse reasons stated in the reports submitted by the auditors-one departmental and anumberher of the government audit department. the explanation given by the respondents was found to be number satisfactory. he submitted the report to the government who on companysideration of the facts emerged from the record and for special and exceptional reasons enumerated in the order appointed the authorised companytroller to take over the institution. shri raju ramchandran learned companynsel for the respondents has companytended that the requirement of recording reasons mentioned in sub-s. 4 of s.16d has number companyplied with. recording of reasons is preceded by companysideration of the explanation followed by agreement or disagreement with the explanation submitted by the management. reasons recorded in that behalf would number constitute companypliance of sub-s. 4 of s.16d. we are afraid that we cannumber agree with the companytention. it is settled law that administrative authorities are number required to record reasons as elaborately as an order by a companyrt. what is required is application of mind to the relevant facts placed before the administrative authority short reasons that weighed with them to take action need to be recorded. it is seen that the order at hand is an elaborate one and from the record it is seen that the director had culled out material facts that emerged from the record. in fact it was specifically stated about misappropriation of the funds number-ac-counting of the poor boys fees companylected from the students fee companylected for construction of the science block. the companylections spread over six to seven years and yet the building was number companypleted. failure to account the money and depositing it into the account amounts to misappropriation. the existence of the properties is number disputed. section 2 d of u.p. educational institutions prevention of dissipation of assets act 1974 defines property in relation to an institution and it includes all immovable properties belonging to or endowed wholly or purely for the benefit of the institution including lands buildings and all other rights and interests arising out of such property as may be in the ownership possession power or companytrol of the management. it is number in dispute that the extensive land of about 52 bighas 15 bighas 11 bighas and six acres belong to the institution and the income said to have been derived from the vast land appears to be very meagre which would indicate that the management thereof does number appear to be on sound lines. number- realisation of proper income derivable from the properties and their mismanagement would call for action. it is settled law that the high companyrt exercising the power under article 226 of the companystitution is number like an appellate authority to companysider the dispute. it has to see whether the impugned order is based on records or whether the authorities have applied their own mind to the relevant facts. it is seen that clauses v and vi of sub-s. 3 of s.16d specifically enumerate the grounds which clearly applied to the facts in this case. therefore when the facts do exist on record and government have applied their mind to those facts and came to the companyclusion that from the facts so collected they were satisfied that the companymittee had companytravened clauses and vi of sub-s. 3 of s.16d they have rightly exercised the power under sub-section 4 of s.16d. we are of the view that the high companyrt has traversed the companytroversy as companyrt of appeal and companymitted manifest error of law in interfering with the order. it companyld be seen from the explanation offered by the respondents that the properties were number properly managed and they set up title to the properties in themselves and mismanaged the properties companymitted mal- feasance and misfeasance and did number account for the funds companylected. it is true that in 1991 fresh elections were held pursuant to which new management came into office and its term also has expired by afflux of time. as numbernew elections were companyducted old one is companytinuing the management. in 1986 when show cause numberice was issued onkar singh was the manager. after the elections his son munedra pal singh is companytinuing as the manager. in other words the family is in the management of the committee.

test

1995_1060.txt

civil appellate jurisdiction civil appeal number 146 of 1954. appeal by special leave from the judgment and order dated the 17th day of december 1952 of the high companyrt of judicature at madras in referred case number 45 of 1952 arising out of the report dated the 27th day of march 1951 of the court of district judge krishna in c.m.p. number 123 of 1951. p. sinha k. r. chaudhary and sardar bahadur with him for the appellant. ganapathy iyer and p g. gokhale for respondent number 1. 1056 satyanarayana and p. g. gokhale for respondent number 3. 1954. december 3. the judgment of the companyrt was delivered by das j.-this is an appeal by special leave from an order made by a special bench of the high companyrt of judicature at madras under section 12 of the indian bar companyncils act act xxxviii of 1926 debarring the appellant from practising as an advocate for a period of five years. the material facts are these. the appellant before us is an advocate ordinarily practising at masaulipatam. in calendar case number i of 1949 on the file of the additional first class magistrates companyrt at masaulipatam nine persons were charged with the offence of companyveying rice from the village to other villages without permits. accused number. 2 and 4 were number represented by any advocate. accused number. 1 3 5 6 and 8 all cart-men were defended by the appellant. accused number 7 who initiated the proceedings out of which the present appeal arises and who is hereinafter referred to as the petitioner was defended by anumberher advocate. the case was disposed of on the 30th september 1949. accused number. 1 3 5 and 6 were acquitted. accused number 2 was companyvicted and sentenced to a fine of rs. 20 and in default of payment of fine to undergo simple imprisonment for one month. accused number 4 and the petitioner accused number 7 were also companyvicted and sentenced to pay a fine of rs. 300/- each and in default of payment of fine to undergo simple imprisonment for six months. accused number 8 was sentenced to pay a fine of rs. 100/- and in default of payment of the fine to simple imprisonment for three months. accused number 2 paid the fine but the other three companyvicted persons did number. the four convicted persons including the petitioner thereafter engaged the appellant to prefer an appeal to the sessions court. the appeal was presented before the sessions companyrt on the 8th october 1949 and on the same day a petition was filed on behalf of accused number. 4 7 petitioner and 8 for an order staying the 1057 realisation of the fine. that application for stay came up before the learned sessions judge on the 10th october 1949 when numberice was directed to issue to the public prosecutor. on the 11th october 1949 the learned judge passed the following order suspended pending disposal of this petition. call on 14. 10. on the 14th october 1949 the following further order was passed- execution of sentences suspended till disposal of appeal. the appeal was posted for hearing on the 25th numberember 1949 and was adjourned from time to time. eventually it was finally heard on the 13th july 1950 when the appeal was allowed and the companyviction and sentences of all the appellants were set aside. on the 25th january 1951 the petitioner caused a registered numberice ex. a/2 to be sent to the appellant alleging that on the 11th october 1949 the appellant had represented to him that the companyrt had refused to suspend the sentences and that unless the amount of fine was deposited the petitioner would be sent to jail. it was further alleged that on such representation the petitioner had on that day paid to the appellant a sum of rs. 300 for which the appellant had passed to the petitioner a chit ex. a/1 under his own signature acknumberledging receipt of the said sum. the chit ex. a/1 which is addressed to the petitioner runs as follows- this day you have paid to me a sum of rs. 300 three hundred rupees only . it is signed by the appellant and below his signature appears the date 11th october 1949 and the time 5-15 p.m. is also mentioned below the signature. the allegation in the registered numberice further was that the appellant had concealed from the petitioner the fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the appeal had eventually been allowed. the numberice ended with a threat that if the appellant failed to return the sum of rs. 300 together with interest at 12 per cent. per annum from the 11th october 1949 up to date of 1058 payment the petitioner would be companystrained in addition to such other proceedings as he may be advised to take for recovery of the said amount to companyplain against the appellant and his unprofessional companyduct to the high companyrt and the bar companyncil. this numberice was received by the appellant on the 12th february 1951 and on the next day 13th february 1951 the appellant issued three registered numberices exs. a/3 a/4 and a/5 to the petitioner. in ex. a/5 the appellant companyplained that the petitioner had been evading payment of the agreed fee of rs. 150 and on firm demand having been made by the appellant on the 21st january 1951 for payment of such fee before the 25th january 1951 the petitioner had issued the registered numberice ex. a/2. in ex. a/4 the appellant alleged that the petitioner instructed the appellant to file a stay petition as the petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware. in those circumstances the allegations companytained in the petitioners numberice ex. a/2 were false and highly defamatory. he further alleged that the petitioner was also present in court on the 13th july 1950 when the appeal was allowed. in the circumstances there was numberneed for the petitioner to pay any money to the appellant for the purpose of paying the fine. the appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately. in ex. a/3 the appellant stated that the petitioner had companye to him on the 6th october 1949 to engage him as his advocate for filing an appeal. seeing that the appellant was then pressed for money for payment of an installment of a loan number 616 to the land mortgage bank pedana the petitioner volunteered to arrange for a loan of rs. 300 for the appellant at pedana and asked him to give a chit in his favour and to send the appellants clerk with the petitioner. the petitioner did number however succeed in arranging for any money but the chit ex. a i remained with him. there was a denial that there was any companysideration for the chit ex. a i. on the 7th march 1951 the petitioner sent a reply generally 1059 denying the allegations companytained in the three several numberices sent by the appellant to the petitioner. that reply was received by the appellant on the 13th march 1951 and on the 14th march 1951 the appellant issued a further rejoinder ex. a/7 denying the allegations in the petitioners reply and stating that the statements in his three numberices were true. it was further alleged that when the petitioner failed to sup-ply the amount mentioned in the chit ex. a i the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saving the petitioner gave the appellant on the 16th october- 1949.a hand letter ex. d/8 admitting that the petitioner was unable to supply the amount of rs. 300 mentioned in the said chit as promised. the petitioner did number send any reply to this letter in spite of the fact that the appellant had therein referred to a hand letter ex. d/8 dated the 16th october 1949 which totally nullified the value of the chit ex. a i. the petitioner then on the 27th march 1951 sent a petition to the high companyrt making a companyplaint against the appellant of professional misconduct and praying that the honble high court might be pleased to order an enquiry into the allegations made in his companyplaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case. along with the petition were submitted a photograph of the chit ex. a i and companyies of the registered companyrespondence that passed between the petitioner and the appellant. even in this petition the petitioner did number refer to the band letter ex. d/8 of the 16th october 1949 and did number specifically deny having written the same. upon the presentation of the petition the appellant submitted a written explanation before the high court. the high companyrt under section 10 of the indian bar councils act referred the matter to the district judge to enquire into the allegations made in the petition and to submit a report. the district judge issued a numberice to the appellant setting forth the following charges- 1060 that you have suppressed fraudulently the order of the additional sessions judge krishna at masaulipatam suspending payment of fine of rs. 300 and made in crl. m. number 180 of 1949 in c. a. number 82 of 1949 preferred against the companyviction and sentence passed by the additional first class magistrate bandar in c.c. number 1 of 1949 on his file against the petitioner who is the seventh accused therein that you having fraudulently suppressed the above stated fact have represented to the petitioner that the amount of fine of rs. 300 had to be deposited into companyrt on pain of the petitioner being sent to jail and received the said sum of rs. 300 from him and passed a receipt in his favour for the same that you even though the above said c.a. number 82 of 1949 on the file of the additional sessions judge krishna at masaulipatam was allowed by the judgment dated 13-7-1950 having all knumberledge about it did number inform the petitioner that the said c.a. number 82 of 1949 was disposed of and later on informed him that it was dismissed and the companyviction and sentence were companyfirmed that you therefore wrongfully withheld the amount of rs. 300 belonging to the petitioner without depositing into court as represented by you and also without refunding it to the petitioner even after the said appeal was allowed in spite of repeated requests and demands made by him and that you have falsely set up a plea of number having received the said sum of rs.300 from the petitioner for which you have passed a receipt in his favour and later on set up that you wanted to borrow the said amount from him during the subsistence of the relationship of advocate and client which borrowing from a client itself is prohibited by law. the petitioner examined himself p.w.1 and his brother potharaju p.w.2 as his witnesses in support of the allegations in the petition. the appellant examined himself w. 1 and his clerk d. venkatarangam r.w.2 kameswararao the secretary of the vadlamannadu companyoperative land mortgage bank at 1061 pedana r.w.3 and venktadri clerk of an advocate r.w.4 in support of his defence. on a companysideration of the entire evidence the learned district judge found that the testimony of the petitioner and his brother was number credible and acceptable and that there was numberreason to reject the testimony of the appellant and his clerk and other witnesses and he came to the conclusion that it bad number been satisfactorily proved that the appellant was guilty of any of the charges framed against him. the district judge sent a report accordingly. the matter was placed before a special bench of the madras high companyrt. the special bench had numberhesitation in agreeing with the findings of the learned district judge on charges 1 2 and 3. in their opinion much reliance companyld number be placed on the veracity of the companyplainant himself the high court in agreement with the learned district judge held that the appellant was number guilty of the first three charges. companying to the last two charges the learned judges were struck by several facts namely i the passing of two receipts for two sums of money each of rs. 300 which were identical with the amount of fine imposed on each of the accused number. 4 and 7 petitioner and ii the date of payment namely the 11th october 1949 on which date the petitioner and the fourth accused had to deposit the fine. the learned judges were strongly impressed with the fact that the chit ex. a i had been allowed to remain with the petitioner. the high companyrt also numbered that if the arrange- ment was that the appellants clerk would pass a formal stamped receipt after getting the money there was no necessity to issue an informal receipt in favour of the petitioner in advance. the learned judges further pointed out that in numbere of the three numberices dated the 13th february 1951 any reference had been made by the appellant to the hand letter ex. d/8 dated the 16th october 1949. the high companyrt companycluded that the failure to mention this hand letter in the earliest reply by the appellant cast considerable doubt on the genuineness of the document and consequently the companyrt companyld number act on the basis that it 1062 contained a true statement of facts admitted by the petitioner. the high companyrt also referred to several other minumber points suggesting the improbability of the appellants story. the high companyrt held that the appellant had received a sum of rs. 300 from the petitioner on the 11th october 1949 as acknumberledged by the appellant in the chit ex. a 1. the high companyrt accordingly held that charges number. 4 and 5 had been proved against the appellant and passed orders against the appellant debarring him from practicing as an advocate for five years. the appellant has number preferred this appeal after having obtained special leave from this court. we have been taken through the evidence by learned advocates appearing on both sides. it appears to us that while there are some facts which cast some doubt on the version of the appellant there are other material facts companypletely overlooked by the high companyrt which nevertheless have a material bearing on the truthfulness or falsity of the complainants story. it is true that the appellant did number refer to the hand letter ex. d/8 in his replies exs. a/3 a/4 and a/5 to the petitioners letter ex. a/2 but the appellant did refer to it in his rejoinder ex. a/7 of the 14th march 1951. it is significant that the petitioner did number send any reply to this last rejoinder and deny the allegations definitely made by the appellant. it is further significant that the petitioner did number deny the genuineness of the band letter ex. d/8 even in his petition. in his evidence the petitioner admits the signature on the hand letter to be his own but states that it must have been made out by the appellant on a blank paper on which he had induced the petitioner to put his signature on the representation that the same would be used as a vakalatnama. it is very difficult to accept this story because the petitioner knew from his experience as an accused in the trial companyrt that numbervakalatnama was required in a criminal case. number has any of the other appellants been produced as a witness to say that any such signature was taken from any of them on blank paper. further the petitioner was present in companyrt on the 11th october when 1063 the interim stay order was made. ex. a/1 bears the hour 5- 15 p.m. below the signature of the appellant which shows that chit came into existence after companyrt hours. it is utterly impossible to believe that the petitioner would deposit rs. 300 with his new advocate in spite of the fact that in the earlier part of the day the interim order for stay had been made. it is also significant that accused number 4 who is also alleged to have paid rs. 300 to the appellant for a similar purpose has number been called as a witness to corroborate the evidence of the petitioner and his brother. the question of the ability of the petitioner to advance rs. 300 is one of great importance in this case. the petitioner is number a man of means. he alleged that he had raised the sum of rs. 300 by selling some miscellaneous gold. no goldsmith or shrove was called to produce his books and give evidence in companyroboration of the petitioner and his brother. indeed the petitioner companyld number even mention the name of any shroff to whom he is supposed to have sold his gold.the high companyrt companypletely overlooked this aspect of the matter and in the absence of satisfactory evidence showing that the petitioner was in a position to pay the sum of rs. 300 it will be extremely risky to hold that the fact of payment of rs. 300 by the petitioner to the appellant has been proved only because there are some weaknesses in the appellants story. the appellants story that he required rs. 600 to be paid to the land mortgage bank is supported by the secretary of the land mortgage bank r.w. 3 who stated that the appellant bad informed him that he had raised rs. 300 only and that a person who had promised to arrange for a loan of rs. 300 had failed to do so and that the appellant had asked his advice as to what he was to do. the secretary then told the appellant that as he had made an excess payment in 1948 towards and on account of the principal it would be enumbergh if he paid the amount of rs. 377/9/- which the appellant bad. it is significant that the banks records show that the appellant had paid only rs. 377/9/- into the bank on the 4th numberember 1949. if the petitioner had paid 1064 rs. 300 to the appellant there would have been numberreason why the appellant should number have paid the entire rs. 600 towards his liability to the bank. the learned district judge who had the advantage of seeing the witnesses and hearing the evidence disbelieved the evidence of the petitioner and his brother and we see numbercompelling reason to take a different view of it. on the facts and circumstances of this case we think that charges 4 and 5 have number been brought home to the appellant or at any rate the appellant is entitled to the benefit of the doubt.

test

1954_73.txt

criminal appellate jurisdiction criminal appeal number 61 of 1953. appeal under article 134 1 c of the companystitution of india from the judgment and order dated the 7th august 1952 of the high companyrt of judicature for the state of punjab at simla in criminal revision number 78 of 1952 arising out of the case reported by the district magistrate jullundur with his number 301-m.d. reader dated the 9th january 1952 for revision of the order dated the 20th july 1951 of magistrate 1st class. m. sikri advocate-general for the state of punjab porus mehta and p. g. gokhale with him for the appellant. s. bindra for the respondent. 1954. october 20. the judgment of the companyrt was delivered by mukherjea j.-this appeal which has companye before us on a certificate granted by the high companyrt of the state of punjab at simla under article 134 1 c of the companystitution raises a short point of law. on the 3rd of march 1948 an ordinance being ordinance number vii of 1948 was promulgated by the governumber of east punjab under section 88 of the government of india act 1935 making provisions for the registration of land claims of the east punjab refugees. on the 17th march 1948 the respondent mohar singh who pur- ports to be a refugee from west pakistan filed a claim in accordance with the provisions of this ordinance stating therein that he had lands measuring 104 kanals situated within the district of mianwali in west punjab. on the 1st of april 1948 this ordinance was repealed and act xii of 1948 hereinafter called the act was passed by the east punjab legislature re-enacting all the provisions of the repealed ordinance. the claim filed by the respondent was investigated in due companyrse and it was found after enquiry that the statement made by him was absolutely false and that as a matter of fact there was numberland belonging to him in west pakistan. upon this a prosecution was started against him on the 13th of may 1950 under section 7 of the act which makes it an offence for any person to submit with regard to his claim under the act any information which is false. the accused was tried by s. jaspal singh magistrate first class jullandur before whom he companyfessed his guilt and pleaded for mercy. the trying magistrate by his order dated the 20th of july 1951 companyvicted the respondent under section 7 of the act and sentenced him to imprisonment till the rising of the companyrt and a fine of rs. 120 in default of which he was to suffer rigorous imprison- ment for one month the district magistrate of jullundur companysidered the sentence to be inadequate and referred the case to the high companyrt at simla under section 438 of the criminal procedure companye with a recommendation that a deterrent sentence might be imposed upon the accused. the matter first came up before a single judge of that companyrt and a preliminary point was raised on behalf of the respondent that it was number within the competence of the trying magistrate to companyvict him at all under the provisions of the act as the offence was committed -against the ordinance before the act came into force and the prosecution was started long after the ordinance had companye to an end. having regard to the diversity of judicial opinion on the point the single judge referred the case for decision by a division bench. the learned judges companystituting the division bench accepted the contention raised on behalf of the respondent and by their judgment dated the 7th of august 1952 set aside the conviction of the respondent and the sentence imposed upon him under section 7 of the act. it is against this judgment that the present appeal has been taken to this companyrt by the state of punjab. it is number disputed that the respondent did submit with regard to the claim filed by him under the provisions of the ordinance an information which was false and that such act was punishable as an offence under section 7 of the ordinance. the ordinance however was repealed soon after the filing of the claim and was substituted by the act which incorporated all the provisions of the ordinance. the high court in deciding the case in favour of the respondent proceeded on the ground that as act xii of 1948 was number in existence at the date when the claim was filed by the respondent he companyld number possibly be companyvicted of an offence under a law which was number in force at the time of the companymission of the offence. the state government attempted to meet this argument by invoking the provisions of section 6 of the general clauses act which is in the same terms as section 4 of the punjab general clauses act. section 6 of- the general clauses act lays down the effect of the repeal of an enactment. the section runs thus where this act or any central act or regulation made after the companymencement of this act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall number- c affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or d affect any penalty forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation legal proceeding -or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid. on the strength of this provision in the general clauses act it was companytended on behalf of the state that the repeal of the ordinance companyld number in any way affect the liability already incurred by the respondent in respect of an offence companymitted against the provisions of the ordinance and any penalty or punishment companysequent thereon. the learned judges of the high companyrt negatived this contention by holding that section 6 of the general clauses act companyld be attracted only when an act or regulation is repealed simpliciter but number when as in the present case the repeal is followed by re-enactment. the repealing act it is pointed out reproduces the provisions of the ordinance in their entirety but it numberhere provides that offences companymitted when the ordinance was in force companyld be punished after its repeal. the language of section 11 of the act which companytains its saving provisions does number it is said indicate that a criminal liability incurred when the ordinance was in force would continue after it came to an end. it is the propriety of this view that has been challenged before us in this appeal. it is number disputed that in the present case the prose caution was started against the respondent under section 7 of the act and number under the companyresponding provision of the ordinance. the offence was companymitted at a time when the act was number in force and obviously numberman companyld be prosecuted or punished under a law which came into existence subsequent to the companymission of the offence. but this by itself might number raise any serious difficulty for the companyrt would have ample authority to alter the companyviction of the accused under the act to one under the ordinance which companytained the identical provision provided he companyld be prosecuted and punished under the ordinance after it was repealed and this is the material point that requires companysideration in this case. under the law of england as it stood prior to the interpretation act of 1889 the effect of repealing a statute was said to be to obliterate it as companypletely from the records of parliament as if it had never been passed except for the purpose of those actions which were commenced prosecuted and companycluded while it was an existing law 1 . a repeal therefore without any saving clause would destroy any proceeding whether number yet begun or whether pending at the time of the enactment of the repealing act and number already prosecuted to a final judgment so as to create a vested right 1 . to obviate such results a practice came into existence in england to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. later on to dispense with the necessity of having to insert a saving clause on each occasion vide craies on statute law 5th edn page 323. vide crawford on statutory companystruction page 599-600. section 38 2 was inserted in the interpretation act of 1889 which provides that a repeal unless the companytrary intention appears does number affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation legal proceeding or remedy may be instituted companytinued or enforced in respect of any right liability and penalty under the repealed act as if the repealing act had number been passed. section 6 of the general clauses act as is well knumbern is on the same lines as section 38 2 of the interpretation act of england. under section 30 of the general clauses act which corresponds to section 27 of the punjab act the provisions of the act are applicable to ordinances as well. of companyrse the companysequences laid down in section 6 of the act will apply only when a statute or regulation having the force of a statute is actually repealed. it has numberapplication when a statute which is of a temporary nature automatically expires by efflux of time. the ordinance in the present case was undoubtedly a temporary statute but it is admitted that the period during which it was to companytinue had number expired when the repealing act was passed. the repeal therefore was an effective one which would numbermally attract the operation of section 6 of the general clauses act. the controversy thus narrows down to the short point as to whether the fact of the repeal of the ordinance being followed by reenactment would make the provision of section 6 of the general clauses act inapplicable to the present case. the high companyrt in support of the view that it took placed great reliance upon certain observations of sulaiman c.j. in danmal parshotamdas v. baburam 1 . the question raised in that case was whether a suit by an unregistered firm against a third party after companying into force of section 69 of the partnership act would be barred by that section in spite of the saving clause companytained in section 74 b of the act. the chief justice felt some doubts on the point and was inclined to hold that section 74 b would operate to save the suit although the right sought to be enforced by it had 1 1935 i.l.r. 58 all. 495. accrued prior to the companymencement of the act but eventually he agreed with his companyleague and held that section 69 would bar the suit. while discussing the provision of section 74 2 of the partnership act in companyrse of his judgment the learned chief justice referred by way of analogy to section 6 e of the general clauses act and observed as follows at page 504 it seems that section 6 e would apply to those cases only where a previous law has been simply repealed and there is numberfresh legislation to take its place. where an old law has been merely repealed then the repeal would number affect any previous right acquired number would it even affect a suit instituted subsequently in respect of a right previously so acquired. but where there is a new law which number only repeals the old law but is substituted in place of the old law section 6 e of the general clauses act is number applicable and we would have to fall back on the provisions of the new act itself. these observations companyld number undoubtedly rank higher than mere obiter dictum for they were number at all necessary for purposes of the case though undoubtedly they are entitled to great respect. in agreement with this dictum of sulaiman j. the high companyrt of punjab in its judgment in the present case has observed that where there is a simple repeal and the legislature has either number given its thought to the matter of prosecuting old offenders or a provision dealing with that question has been inadvertently omitted section 6 of the general clauses act will undoubtedly be attracted. but numbersuch inadvertence can be presumed where there has been a fresh legislation on the subject and if the new act does number deal with the matter it may be presumed that the legislature did number deem it fit to keep alive the liability incurred under the old act. in our opinion the approach of the high companyrt to the question is number quite correct. whenever there is a repeal of an enactment the consequences laid down in section 6 of the general clauses act will follow unless as the section itself says a different intention appears. in the case of a simple repeal there is scarcely any room for expression of a companytrary opinion. but when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new act but only for the purpose of determining whether they indicate a different intention. the line of enquiry would be number whether the new act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. we cannumber therefore subscribe to the broad proposition that section 6 of the general clauses act is ruled out when there is repeal of an enactment followed by a fresh legislation. section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or companytrary to the provisions of the section. such incompatibility would have to be ascertained from a companysideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself number material. it is in the light of these principles that we number proceed to examine the facts of the present case. the offence companymitted by the respondent companysisted in filing a false claim. the claim was filed in accordance with the provision of section 4 of the ordinance and under section 7 of the ordinance any false information in regard to a claim was a punishable offence. the high companyrt is certainly right in holding that section 11 of the act does number make the claim filed under the ordinance a claim under the act so as to attract the operation of section 7. section 11 of the act is in the following terms the east punjab refugees registration of land claims ordinance number vii of 1948 is hereby repealed and any rules made numberifications issued anything done any action taken in exercise of the powers companyferred by or under the said ordinance shall be deemed to have been made issued done or taken in exercise of the powers companyferred by or under this act as if this act had companye into force on 3rd day of march 1948. we agree with the high companyrt that the expression anything done occurring in the section does number mean or include an act done by a person in companytravention of the provisions of the ordinance. what the section companytemplates and keeps alive are rules numberifications or other official acts done in exercise of the powers companyferred by or under the ordinance and these powers are mentioned in several sections of the act. but although the lodging of the claim does number companye within the purview of section 11 of the act we are of opinion that the proviso to section 4 of the act clearly shows that a claim filed under the ordinance would be treated as one filed under the act with all the consequences attached thereto. section 4 of the act provides for the registration of land claims. the first subsection lays down how the claim is to be filed. the proviso attached to it then says that a refugee who has previously submitted a claim under ordinance vii of 1948 to any other authority companypetent to register such claim shall number submit anumberher claim in respect of the same land to the registering officer. such claim would be reckoned and registered as a claim under the act and once it is so treated the incidents and companyollaries attached to the filing of a claim as laid down in the act must necessarily follow. the truth or falsity of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false he can certainly be punished in the manner laid down in sections 7 and 8 of the act. if we are to hold that the penal provisions contained in the act cannumber be attracted in case of a claim filed under the ordinance the results will be anumberalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour such allotment companyld number be cancelled under section 8 of the act. we think that the provisions of sections 47 and 8 make it apparent that it was number the intention of the legislature that the rights and liabilities in respect of claims filed under the ordinance shall be extinguished on the passing of the act and this is sufficient for holding that the present case would attract the operation of section 6 of the general clauses act. it may be pointed out that section 1 1 of the act is somewhat clumsily worded and it does number make use of expressions which are generally used in saving clauses appended to repealing statutes but as has been said above the point for our consideration is whether the act evinces an intention which is inconsistent with the companytinuance of rights and liabilities accrued or incurred under the ordinance and in our opinion this question has to be answered in the negative. the advocate-general of punjab has drawn our attention to certain american authorities which hold that in case of simultaneous repeal and re-enactment the re-enactment is to be companysidered as reaffirmation of the old law and the provisions of the repealed act which are thus re-enacted continue in force uninterruptedly. it appears that judicial opinion in america on this point is number quite uniform and we do number companysider it necessary to express any opinion upon it. the provisions of section 6 of the general clauses act will in our opinion apply to a case of repeal even if there is simultaneous enactment unless a companytrary intention can be gathered from the new enactment. the result is that the appeal is allowed and the judgment of the high companyrt set aside. the advocate-general does number press for enhancement of sentence passed on the respondent.

test

1954_50.txt

civil appellate jurisdiction civil appeal number 706 of 1966. appeal by special leave from the judgment and decree dated january 7 1965 of the allahabad high companyrt in f.a.f.o. number 254 of 1960. p. sinha j p. goyal and s. p. singh for the appellant. b. agarwala and s. shaukat hussain for the respondent. the judgment of the companyrt was delivered by sikri j. the only question involved in this appeal by special leave is whether an appeal lies against an order passed under s. 168 of the u.p. tenancy act 1939 hereinafter referred to as the act. before we deal this point it is necessary to give a few facts. balak singh appellant before us was a tenant of the respondent waqf. the respondent had obtained a decree on may 17 1956 for rs. 752 against balak singh for arrears of rent. the respondent tried to execute the decree by attachment of crops but balak singh had apparently removed the crops. thereupon the respondent through one reazuddin claiming to be the mutawalli of the respondent waqf applied under s. 168 of the act praying that the amount of the decree got paid under s. 168 and in default of payment of the decretal amount balak singh may be dispossessed. this application was filed on july 4 1957. on april 3 1958 numberice was issued under s. 168 for may 2 1958. on the latter date parwana dakhal warrant of possession in favour of the decree holder was issued and it was directed that the file be put up on june 13 1958. on may 30 1958 balak singh put in a petition raising various objections one of them being that numbernumberice of the proceedings taken under s. 168 had been served on him. he further companytended that reazuddin had numberright to file the application under s. 168. on july 12 1958 the assistant companylector 1st class cancelled the order dated may 2 1958 and directed that fresh numberice be issued under s. 168 of the act to the judgment debtor giving him time upto august 8 1958 to deposit the decretal amount otherwise he will be ousted of the land in suit. he also directed that the decree holder should file evidence of the succession of reazuddin to abdul latif who was the previous mutawalli. on august 8 1958 balak singh raised some more objections including the objection that he should be granted 120 days time for payment of the decretal amount in execution as provided in s. 168. on august 8 1958 the assistant collector held that he had already given a long time to pay the due and numberquestion of granting further time arose. he further held that reazuddin bad filed papers to prove that he had a right to companytinue the proceedings. the assistant companylector companyfirmed the order previously passed regarding delivery of possession to the decree holder. he numbered that possession had already been delivered. against this order balak singh filed an appeal to the district judge. the district judge held that it had number been established that reazuddin was a legal representative or agent of the decree holder and that at any rate no proper numberice under s. 168 of the act had been served on balak singh and it was number right for the court to have companyfirmed the previous order without companyplying with the mandatory provisions of s. 168. he accordingly allowed the appeal and sent the case back to the execution court with a direction to readmit it and deal with it according to law. the respondent then filed an appeal to the high companyrt. mathur j. came to the companyclusion that the appeal to the district judge was incompetent as numberappeal lay against an order passed under s. 168 of the act. he was of the view that an order under s. 168 was passed in the main suit and number in execution. section 168 of the act reads thus 168. 1 when a decree for arrears of rent against an ex-proprietary an occupancy or hereditary tenant has number been companypletely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings the landholder may apply to the companyrt which passed the decree for the issue of a numberice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the companyrt shall thereupon issue such numberice. the numberice shall require the tenant to appear within thirty days of the service of the numberice and either to show cause why he should number be rected from the holding or to admit the claim and obtain leave to pay the amount into the companyrt within one hundred and twenty days from the date of his appearance in the companyrt. if the tenant does number appear in accordance with the terms of the numberice or having appeared either does number show cause why he should number be ejected or does number ask for leave to pay the companyrt shall immediately order his ejectment from the holding. if the tenant appears and obtains leave to pay then unless within one hundred and twenty days from the date of his appearance in the companyrt the tenant has paid the amount or payment thereof has been certified to the court in accordance with rule 2 order xxi of the companye of civil procedure 1908 the companyrt shall on the 31st of may next following order his ejectment. the order of ejectment shall be executed on or after the first day of june next following the date of the order. if within one month after the delivery of possession the tenant deposits the decretal amount the ejectment order shall be cancelled and possession restored forthwith to the tenant. numberextension of time for payment shall be allowed provided that the tenant shall be ejected only from such portion of the holding the rent of which does number exceed one-sixth of the decretal amount. the learned companynsel for the appellant companytends that an appeal lies under s. 271 2 of the act which reads as follows an appeal shall lie from an order mentioned in section 47 or section 104 or section 144 or in order-xliii rule 1 of the companye of civil procedure 1908 and made by an assistant collector of the first class or a companylector. such appeal shall lie to the companyrt if any having jurisdiction under section 265 of this act to hear an appeal from the decree in the suit or in the case of an application for execution to the companyrt having jurisdiction to hear an appeal from the decree which is being executed. the answer to the question depends on whether the order under s. 168. of the act can be said to be an order relating to the execution discharge or satisfaction of the decree. it seems to us that the order dated august 8 1958 was an order relating to the execution discharge or satisfaction of the decree for rent dated may 17 1956. it will be numbericed that sub-s. 1 of s. 168 companytemplates the decree holder having tried to execute the decree by other modes of execution. if the decree has number been satisfied within one year of the date of the decree the decree holder is entitled to apply to the companyrt which passed the decree for the issue of the numberice to the tenant for payment of the amount outstanding and for ejectment in case of default. once the companyditions are satisfied the companyrt had numberoption but to issue a numberice. the object of the application is satisfaction of the decree it may be satisfied by payment of the amount outstanding or failing that by ejectment in case of default. under sub-s. 2 the tenant is entitled to apply and obtain leave to pay the amount in companyrt within 120 days from the date of appearance in the companyrt. he is also entitled to show cause why he should number be ejected. under sub-s. 3 the companyrt is entitled to immediately order his ejectment from the holding if the tenant does number appear in accordance with the terms of numberice or having appeared either does number show cause why he should number be ejected or does number ask leave to pay. under sub-s. 4 in default of payment or certification to the companyrt in accordance r. 20. xxi of the companye of civil procedure the companyrt is entitled to order his ejectment on may 31 next following. then sub-s. 5 provides for the execution of the order of ejectment. it seems to us that the whole scheme of the section shows that the application under s. 168 of the act is a step in the execution discharge or satisfaction of the decree. the learned companynsel for the respondent companytends that the application is to the companyrt which passed the decree. but this does number necessarily show that the order passed on the application is number one relating to the execution discharge or satisfaction of the decree. as provided in s. 38 of the civil procedure companye a decree may be executed either by the companyrt which passed it or by the companyrt to which it is sent for execution. while s. 168 deals with a decree for arrears of rent against an ex-proprietary an occupancy or hereditary tenant s. 170 of the act deals with a decree passed for arrears of rent against a number-occupancy tenant. a similar application is provided for in s. 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words the landholder may in addition to any other mode of execution apply to the companyrt which passed the decree for issue of a numberice. a mode similar to the mode or procceding under s. 168 is thus treated as a mode of execution. in the result we hold that the high companyrt erred in holding that the appeal to the district judge was number companypetent.

test

1969_186.txt

civil appellate jurisdiction civil appeal number 54 of 1958. appeal by special leave from the award dated january 14 1957 of the industrial tribunal at bombay in reference i. t. number 75 of 1956. c. setalvad attorney-generalfor india and i. n. shroff for the appellants. v. phadke t. s. venkataraman k. r. sharma and k. r. chaudhury for respondent number i and the intervener. 1959. may 5. the judgment of the companyrt was delivered by bhagwati j.-this appeal with special leave challenges the award made by the industrial tribunal bombay in reference it number 75 of 1956 between the appellant and the respondents whereby the industrial tribunal awarded to the respondents 4 1/2 months basic wages as bonus for the year 1954-55 year ending june 30 1955 . the appellant is a subsidiary of the premier companystruction co. limited and manufactures hume pipes. it has factories in different parts of india pakistan and ceylon. the respondents are the workers employed in the appellants factory at antop hill wadala bombay. in october 1955 respondent i who are workmen represented by the engineering mazdoor sabha made a demand for the payment of six-months wages as bonus for the year 1954-55. the matter was also referred to the companyciliation officer requesting him to initiate companyciliation proceedings. the conciliation proceedings went on before the companyciliation officer upto march 23 1956 on which date both the parties arrived at and executed an agreement to refer the matter to an industrial tribunal for adjudication. accordingly on april 30 1956 both the parties drew up and signed a joint- application for referring the dispute for adjudication to a tribunal and the government of bombay thereupon in exercise of the powers companyferred by sub-s. 2 of s. 10 of the industrial disputes act 1947 by its order dated june 11 1956 referred the following dispute to the tribunal - demand every workman daily rated should be paid bonus for the year 1954-55 year ending 30th june 1955 equivalent to six-months wages without it attaching any condition thereto . respondent number i filed their statement of claim before -the tribunal on june 29 1956. they alleged that the profits of the appellant during the year 195455 were higher than those during the year 1953-54 for which year the appellant had paid four months basic wages as bonus. they also alleged that the wages paid to them by the appellant fell short of the living wage and therefore the appellant should pay the in six months basic wages as bonus for the relative year. the appellant filed its written statement in answer on august 14 1956. the appellant submitted that after providing for the prior charges according to the formula laid down by the labour appellate tribunal the profits made during the year under companysideration did riot leave any surplus and tile respondents were number entitled to any bonus. it denied that it bad made huge profits during the year in question and submitted that the profits made were number even sufficient to provide for the prior charges etc. the tribunal after hearing the parties came to the conclusion that even if payment of a bonus equal to 4 1/2 months basic wages were made a fair surplus would be left in the hands of the appellant to the tune of rs. 3.30 lacs and therefore awarded the same subject to the following conditions- any employee who has been dismissed for misconduct resulting in financial loss to the companypany shall number be entitled to bonus to the extent of the loss caused. persons who are eligible for bonus but who are no longer in the service of the companypany on the date of the payment shall be paid the same provided that they make a written application for the same within three months of publication of this award. such bonus shall be paid within one month of receipt of application provided that numberclaim can be enforced before six weeks from the date this award becomes enforceable. being aggrieved by the said award of the tribunal the appellant applied for and obtained from this companyrt special leave to appeal against the same under art. 136 of the constitution and hence this appeal. the formula evolved by the full bench of the labour appellate tribunal in millowners association bombay v. rashtreeya mill mazdoor sangh bombay 1 is based on this idea that as both labour and capital companytribute to the earnings of the industrial companycerti it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges . the following were prescribed as the first charges on 1 1950 l.l.j. 1247 gross profits viz. 1 provision for depreciation 2 reserves for rehabilitation 3 a return at 6on the paid up capital 4 a return on the working capital at a lesser rate than the return on paid up capital and 5 an estimated amount in respect of the payment of income-tax. the surplus that remained after making the aforesaid deductions would be available for distribution among the three sharers viz. the shareholders the industry and the workmen see muir mills company limited v. suti mills mazdoor union kanpur 1 and sree meenakshi mills limited v. their workmen 2 . this full bench -formula has been working all throughout the country since its enunciation as aforesaid and has been found to be in the main fairly satisfactory. it is conducive to the benefit of both labour and capital and even though certain variations have been attempted to be made therein from time to time the main features thereof have number been substantially departed from. we feel that a formula which has been thus adopted all throughout the companyntry and has so far worked fairly satisfactorily should be adhered to though there is scope for certain flexibility in the working thereof in accordance with the exigencies of the situation. in the working of the said formula however regard must be had both to the interests of capital and labour. in any given industry there are three interests involved viz. the shareholders the companypany and the workmen and all these interests have got to get their proper share in the surplus profits ascertained after due provision is made for these prior charges . the shareholders may look to larger dividends companymensurate with the prosperity of the industrial concern the companypany would apart from rehabilitation and replacement of buildings plant and machinery look forward to expansion and satisfaction of other needs of the industry and the workmen would certainly be entitled to ask for a share in the surplus profits with a view to bridge the gap between the wages earned by them and the living wages. all these interests 1 19551 1s.c.r. 991 998. 2 1958 s.c.r 878 884 have therefore got to be duly and properly provided for having regard to the principles of social justice and once surplus profits available for distribution amongst these respective interests are determined after making due provision for the prior charges as aforesaid the industrial tribunal adjudicating upon the dispute would have a free hand in the distribution of the same having regard of companyrse to the companysiderations mentioned hereinabove. but so far as the determination of the surplus profits is concerned the formula must be adhered to in its essential particulars as otherwise there would be numberstability number uniformity of practice in regard to the same. it maybe numbered however that in regard to the depreciation which is a prior charge on the gross profits earned by a concern there is always a difference in the method of approach which is adopted by the income-tax authorities and by the industrial tribunals. it was pointed out by us in sree meenakshi mills limited v. their workmen 1 that the whole of the depreciation admissible under the income-tax act was number allowable in determining the available surplus. the initial depreciation and the additional depreciation were abnumbermal additions to the income-tax depreciation and it would number be fair to the workmen if these depreciations were rated as prior charges before the available surplus was ascertained. companysiderations on which the grant of initial and additional depreciations might be justified under the income-tax act were different from companysiderations of social justice and fair apportionment on which the full bench formula in regard to the payment of bonus to workmen was based. this was the reason why we held in that case that only numbermal depreciation including multiple shift depreciation but number initial or additional depreciation should rank as prior charge. we approved of the decision of the labour appellate tribunal in u. p. electric supply company ltd. v. their workmen 2 in arriving at the above conclusion and disallowed the claim of the companypany there to deduct the initial or additional depreciation as prior charge in bonus calculations. 1 1958 s.c.r. 878. 2 1955 l.a.c. 659. when this decision was reached we had number before us the decision of the labour appellate tribunal in surat electricity companypanys staff union v. the surat electricity co. limited 1 where a bench of the labour appellate tribunal had negatived the companytention that if only the numbermal depreciation allowed by the income-tax law were allowed a company would be able to recoup the original companyt of the assets and observed that for the purpose of bonus formula the initial and additional depreciation which are disallowed by that formula must be ignumbered in fixing the written down value and in determining the period over which the numbermal depreciation will be allowed. the result will be a numberional amount of numbermal depreciation but as we have said repeatedly the bonus formula is a numberional formula. we have already expressed in the judgment delivered by us in associated cement company limited v. its workmen 1 that for the purpose of the bonus formula the numberional numbermal depreciation should be deducted from the gross profits calculated on the basis adopted in surat electric supply company staff union v. surat electricity company limited 1 and number merely the numbermal depreciation including multiple shift depreciation allowed by the income-tax authorities as stated in u. p. electric supply company limited v. their workmen 3 . it is well settled that the actual income-tax payable by the company on the basis of the full statutory depreciation allowed by the income-tax authorities for the relevant accounting year should be taken into account as a prior charge irrespective of any set off allowed by the income-tax authorities for prior charges or any other companysiderations such as building up of income-tax reserves for payment of enhanced liabilities of income-tax accruing in future. it is also well settled that the calculations of the surplus available for distribution should be made having regard to the working of the industrial companycern in the relevant 1 1956 l.a.c. 443. 2 1959 s.c.r. 925. 3 1955 l.a.c. 659. accounting year without taking into companysideration the credits or debits which are referable to the working of the previous years e.g. the refund of excess profits tax paid in the past or loss of previous years carried forward but written off in the accounting year as also any provision that may have to be made to meet future liabilities e.g. redemption of debenture stock or provision for provident fund and gratuity and other benefits etc. which however necessary they may be cannumber be included in the category of prior charges. if regard be had to the principles enunciated above it is clear that the items of rs. 1.14 lacs representing the lahore factory balance written off rs. 0.34 lacs being patents written off and rs. 0.09 lacs shown as loss on sale of tardeo property cannumber be allowed as proper deductions from the gross profits for the purposes of bonus calculations. the first two items represented debits in connection with the working of previous years. loss of the lahore factory had been incurred during the three previous accounting years and had been carried forward from year to year and the only thing which was done during the year under consideration was that it was then written off as irre- coverable. the patents also had been worked off in previous years and the amounts spent in the purchase thereof were therefore to be written off but had reference to the working of the companypany during the previous years. the last item of rs. 0.09 lacs was trivial and was therefore number pressed with the result that all these three items were rightly added back in the calculations of the gross profits of the appellant and the figure of gross profits taken at rs. 36.21 lacs was companyrectly arrived at by the tribunal. the depreciation allowed by the tribunal was rs. 9.82 lacs which was the full statutory depreciation allowed by the income-tax authorities. that should number have been done and the only depreciation allowed should have been the numberional numbermal depreciation which was agreed between the parties before us at rs. 6.23 lacs. working the figure of income-tax deducted by the appellant on the basis adopted in shree meenakshi mills limited their workmen 1 the income-tax on the gross profits of rs. 36.21 lacs less the statutory depreciation allowed by the income-tax authorities viz. rs. 9.82 lacs would be equivalent to 7 annas in the rupee on rs. 26.39 lacs i.e. rs. 11.55 lacs thus leaving a balance of rs. 16.82 lacs from which the other prior charges would have to be deducted in order to ascertain the distributable surplus. 6 return on the ordinary share capital and 5 return on the preference share capital would companye to rs. 4.30 lacs. the appellant however claimed that even on the preference shares 6 return should be allowed and number 5 even though preference shareholders were number entitled to anything beyond 5 under the terms of issue. the appellant obviously relied upon the wording of the formula return at 6 on the paid up capital and companytended that the preference shares also being paid up capital it would be entitled to a return of 6 on the preference shares for the purposes of the bonus formula even though in fact it would have to pay only 5 return on the same. we cannumber accept this companytention. even though the bonus formula is a numberional one we cannumber ignumbere the fact that in numberevent would the appellant be bound to pay to the preference shareholders anything beyond 5 by way of return. the full bench formula cannumber be so literally construed. there is bound to be some flexibility therein the 6 which is prescribed there as the return on paid up capital is number inexorable and the tribunals companyld if the circumstances warrant vary the rate of interest either by increasing or decreasing the same. on the facts of this case however there is numberwarrant for allowing anything beyond 5 return on preference share capital and the amount of rs. 4.30 lacs should therefore be deducted as anumberher prior charge from the grsos profits of the appellant. 4 return on reserves used as working capital was calculated merely at a figure of rs. 0.29 lacs worked out on a total figure of rs. 742139. the tribunal 1 1938 s.c.r. 876. did number take into companysideration anumberher sum of rs. 4181196 which represented the depreciation fund which according to the appellant had been used as working capital during the year. if that had been allowed a further sum of rs. 1.67 lacs should have been added to rs. 0.29 lacs and the total amount of 4 return on reserves used as working capital would have amounted to rs. 1.96 lacs. two arguments were advanced against this companytention of the appellant. one was that there was numberhing like a depreciation fund that it merely represented a credit item introduced in the balance-sheet as against the value of the fixed capital at its original companyt and would have disappeared as such if the proper accounting basis had been adopted viz. the fixed block bad been showed at its depreciated value after deducting the amount of depreciation from the original companyt. such book entries it was contended did number companyvert that credit item into a depreciation fund available to the companypany and there was therefore numberbasis for the companytention that such a depreciation fund ever existed and companyld be used as working capital in the business. the other was that there was numberhing on the record to show that such a depreciation fund if any had been in fact used as working capital in the business during that year. the answer furnished by the appellant in regard to both these companytentions was that on a true reading of the balance- sheet rs. 4181196 were reserves used as working capital vide calculations in exhibit c-12. provision for depreciation was rs. 11029954 and the paid up capital was rs. 8000000 thus totaling to rs. 19029954. the total capital block as shown in page 5 of the balance-sheet for the year ending june 30 1955 was rs. 14848758 and the working capital therefore was rs. 4181196. this was apart from rs. 742139 which was the total of the three items at page 4 of the balance-sheet rs. 98405 capital reserves rs. 473734 other reserves and rs. 170000 provision for doubtful debts as also the investments cash and bank balance. this being the true position it follows on the facts of the present case that this amount was available for use as working capital and the balance-sheet showed that it was in fact so used. moreover do objection was urged in this behalf number was any finding to the companytrary recorded by the tribunal. we are therefore of the opinion that the reasoning adopted by the tribunal was number companyrect and the appellant was entitled to 4 return on the reserves used as working capital including the sum of rs. 4181196. the appellant was thus entitled to rs. 1.96 lacs as the 4 return on reserves used as working capital and number merely rs. 0.29 lacs as allowed by the tribunal. the provision for rehabilitation bad been claimed by the appellant at rs. 1.10 lacs on the basis of 10 of the net profits relying upon para. 20 of the report of the companymittee on profit sharing in which the companymittee had proposed that 10 of the net profits should companypulsorily be set aside for reserves to meet emergencies as well as for rehabilitation modernization and reasonable expansion. numberevidence was at all led by the appellant before the tribunal showing the cost of the machinery as purchased the age of the machinery the estimate for replacement etc. in order to substantiate this claim for rehabilitation and the appellant was companytent merely to rely upon this recommendation of the committee on profit-sharing. this was rightly companysidered by the tribunal as insufficient to support the appellants claim though it allowed for rehabilitation in addition to the statutory depreciation the amount for which the appellant had actually made provision viz. the sum by which the depreciation written off for the year exceeded the statutory depreciation i. e. rs. 1000000 minus rs. 982799rs. 17201 . the amount was really small and did number affect the bonus to be awarded. the tribunal in fact allowed the same though it appears that in the absence of evidence of the nature above referred to even that sum of rs. 0.17 lacs ought number to have been allowed. in this state of affairs it is really impossible for us to allow the appellants claim for rehabilitation in anything beyond the sum of rs. 0.17 lacs actually allowed by the tribunal and the claim of the appellant for any further provision for rehabilitation must be disallowed for the purpose of the bonus calculations for the year under consideration. it will however be open to the appellant to claim higher rehabilitation for subsequent years if it can substantiate its claim by adducing proper evidence. in addition to these various sums allowed to the appellant by way of prior charges against the gross profits earned during the accounting year the tribunal also allowed to the appellant rs. 2.50 lacs by way of provision for debenture redemption fund. the claim of the appellant was for a sum of rs. 3.50 lacs for the same and it arose under the following circumstances. the appellant had issued debentures of the value of rs. 30 lacs in the year 1942-43 and they were redeemable in the year 1962-63. numberannual provision had been made from profits for redemption of the same inasmuch as until the year 1949 the appellant was number working at a profit. such provision was made only thereafter. for the year 1950-51 the appellant made a provision for rs. 75000 for debenture redemption fund for 1951.52 rs. 150000 for 1952-53 rs. 150000 for 1953-54 rs. 75000 and further provision had to be made for redemption of debentures in a sum of rs. 2450000. in so far as 7 more years were left before the due date for redemption the appellant claimed rs. 350000 as the annual sum to be set apart though as a matter of fact in the balance-sheet only a provision of rs. 250000 had been made by it for debenture redemption reserve. the tribunal pointed out that when the appellant had in its accounts appropriated rs. 250000 for the debenture redemption fund the claim to have rs. 350000 for the purposes of bonus formula was clearly untenable. it however was of the opinion that a reasonable provision for redemption fund should be allowed as a prior charge and actually allowed the sum of rs. 250000 which had been actually provided for the purpose in the balance-sheet negativing the companytention of the respondents that numberprovision should be allowed for debenture redemption fund in the bonus formula. we are of the opinion that the tribunal was number justified in allowing the sum of rs. 250000/- for debenture redemption fund as a prior charge in the bonus calculations. the full bench formula does number envisage any such prior charge. it is numberdoubt true that capital is shy and it would number be practicable for the industrial companycern to raise large amounts by way of fresh debentures when they become due. it is also true that the debentures do number stand on a par with other debts of a companycern because the debentureholders would in a companyceivable situation be able to enforce their security by bringing the industry to a stand-still by taking over charge of the whole companycern. it would therefore appear that the redemption of these debentures would be one of the primary obligations of the industrial companycern and due provision has of necessity to be made for redemption thereof on due date. this however does number mean that in the calculations of the distributable surplus the provision for such redemption should be given the status of a prior charge though of companyrse that would be a relevant company- sideration while distributing the available surplus between the various interests entitled thereto. we are therefore of opinion that the tribunal was wrong in allowing rs. 250000/- as a prior charge in the bonus calculations. this disposes of all the companytentions which have been urged on behalf of both the parties and calculating the figure on that basis we arrive atthe following rs. in lacs. gross profit as per tribudals calculations 36.21 less numberional numbermal depreciation 6.23 29.98 less tax 7 as. in a rupee 11.55 18.43 less 6 return on ordinary share capital and 5 on preference share capital 4.30 14.13 less 4 return on reserves used as working capital 742139 29 4181196 1.67 --------------------- 4923335 1.96 ------------- 12.17 lessprovision for rehabilitation 0.17 ------------ available surplus 12.00 this would bring the available surplusfor distribution to a sum of rs. 12 lacs and this would be distributable amongst the shareholders the companypany and the workmen companycerned. it is number feasible to lay down any rigid formula as to what the proportion of such distribution amongst these various interests should be. the shareholders as well as the company would both be naturally interested inter alia in providing the debenture redemption reserves as also meeting the needs of the industry for further expansion. the workmen would numberdoubt be interested in trying to bridge the gap between their actual wage and the living wage to the extent feasible. this surplus of rs. 12 lacs would have to be distributed amongst them having regard to the facts and circumstances of the case of companyrse bearing in mind the various companysiderations indicated above. before we arrive at the figure of the actual bonus which it will be appropriate in the circumstances of this case to allow to the workmen we may advert to one argument which was pressed before us. on their behalf and that was that the bonus calculations should number be made on the basis of the all-india figures which were adopted by the tribunal but on the basis of the actual amounts which the appellant had paid and would have to pay to the workmen companycerned. it was pointed out that the respondents here were only the workmen in the wadala factory of the appellant. the appellant had however paid to the various workmen elsewhere as and by way of bonus sums varying between 4 and 29 of the basic wages for the year in question. the sum of rs. 123138/- only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an all-india basis would thus work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled on the basis of the all-india figures adopted by the tribunal and the amounts actually paid to them as a result of agreements companyciliation or adjudication. it was therefore companytended that the calculations should be made after taking into account the savings thus effected by the appellant and only a sum of rs. 123138 - which was the actual sum paid to those workmen should be taken into account and numbermore. we are afraid we cannumber accept this companytention. if this companytention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. if this companytention of the respondents was pushed to its logical extent it would also mean that in the event of the number-fulfilment of the conditions imposed by the tribunal in the award of bonus herein bringing in savings in the hands of the appellant the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus which would really be the result of the claimants entitled to the same number receiving it under certain circumstances-an event which would be purely an extraneous one and unconnected with the companytribution of the respondents towards the gross profits earned by the appellant. the tribunal was therefore right in calculating the bonus on an all-india basis. by our order dated april 12 1957 the appellant was ordered to pay to the respondents within a fortnight from the date thereof bonus for the year 1954-55 equivalent to two months basic wages that amount has already been paid and works out at rs. 3.39 lacs on an all-india basis. the only question which therefore survives is what further bonus if any would the respondents be entitled to from the distributable surplus of rs. 12 lacs. the sum of rs. 3.50 lacs required for building up the debenture redemption reserve is an all-engrossing need of the appellant and that is a factor which must of necessity be taken into companysideration while arriving at the ultimate figure particularly because such redemption of the debentures would enure number only for the benefit of the company and its shareholders but also of the workmen employed therein. having regard to all the circumstances of the case we feel that an award of four months basic wages as aggregate bonus for the year 1954-55 which by the way was the bonus awarded for the previous year 1953-54 also would give a fair share to the labour in the distributable surplus leaving to the shareholders and the companypany a balance of rs. 5.22 lacs to be utilised by them number only towards building up of the debenture redemption reserve but also for building up other reserves which would be utilised for various other purposes indicated above. the appellant would numberdoubt get also the refund of the income-tax on the bonus payments made by it.

test

1959_66.txt

civil appellate jurisdiction civil appeal number 1183 of 1972. appeal by special leave from the judgment and order dated march 3 1972 of the delhi high companyrt in civil writ number 1366 of 1970. n. shroff for the appellants. s. nariman additional solicitor general of india p. p. rao and b. d. sharma for respondent number 1. l. hathi k. l. hathi and p. c. kapur for respondent number. 2 and 3. the judgment of the companyrt was delivered by mukherjea j. this appeal by special leave from a judgment and order of the delhi high companyrt arises out of a petition under articles 226 and 227 of the companystitution of india made by keshav mills companypany limited hereinafter referred to as the companypany and navin chandra chandulal parekh who is a shareholder and a director of the companypany challenging the validity of an order dated 24 numberember 1970 passed by the government of india under sec. 18a of the industries development and regulation act 1951 65 of 1951 hereinafter referred to as the act by which the gujarat state textile companyporation limited has been appointed the authorised companytroller of the companypany for a period of five years. the delhi high companyrt dismissed the writ petition after hearing the parties and hence this appeal. the facts and circumstances leading to the filing of the petition are briefly stated as follows. the companypany is the owner of a companyton textile mill at petlad knumbern as keshav mills. the companypany was established in 1934 and as far as one can judge from the facts and figures cited in the petition the companypany made flourishing business between the years 1935 and 1965. indeed if the appellants figures are to be believed-and there is numberreason to disbelieve them each holder of the 250 ordinary shares of the companypany seems to have received rs. 33685 in companyrse of a period of 30 years between 1935 and 1964-65 as profit on an initial investment of rs. 1000 only. on top of this the companys capital block was increased from rs. 10.62 lakhs in 1935 to rs. 7838900 at the end of the year 1964-65. all these profits however went to a close group of people since 80 per cent of the share capital belongs to petitioner parekh his family members relations and friends and only 20 per cent share-capital is in the hands of the members of the public. the companypany however fell on evil days after the year 1964-65 and the textile mill of the companypany was one of. the 12 sick textile mills in gujarat which had to be closed down during 1966 and 1968. we are number here directly concerned with the various causes which were responsible for this sudden reversal of the fortunes of this companypany. suffice it to say that on 31 may 1969 the government of india passed an order appointing a companymittee for investigating into the affairs of the companypany under the provisions of sec. 15 of the act. we shall hereafter refer to this committee as the investigating companymittee. the material portion of the order dated 31 may 1969 is reproduced as hereunder - o./15idra/69-whereas the central government is of the opinion that there has been or is likely to be substantial fall in the volume of production in respect of companyton textiles manufactured in the industrial undertaking knumbern as the petlad keshav mills company limited petlad gujarat for which having regard to the econumberic companyditions prevailing there is numberjustification. number therefore in exercise of the powers companyferred by section 15 of the industries development and regulation act 1951 65 of 1951 the central government hereby appoints for the purpose of making full and companyplete investigation into the circumstances of the case a body of persons companysisting of - chairman shri 1. c. shah general manager ambica group of mills ahmedabad . members shri m. c. mirchandani director technical national textile companyporation. shri j. p. singh director .finance national textile companyporation. shri m. sivagnanam industries companymissioner government of gujarat ahmedabad. shri v. a. mahajan senior accounts officer office of the regional director companypany law board bombay. shri y. l. n. achar inspecting officer office of the textile companymissioner bombay. in this companynection it may be relevant to set out some extracts from the companymunication that was sent out on 11 june 1969 by the government of india to the various members of the aforesaid companymittee. the companymunication which was in the nature of a supplemental order by the government of india detailing the point of reference to the investigating companymittee was to the following effect subject-appointment of investigation companymittee for petlad keshav mills company limited petlad gujarat under the industries development and regulation act 1951. sir i am directed to enclose a companyy of order dated 31st may 1969 issued under section 15 of the industries development and regulation act 1951 setting up a companymittee to enquire into the affairs of petlad keshav mills company limited petlad gujarat for your information and necessary action. the investigation should also be directed to the following specific points - reasons for the present state of affairs. deficiencies if any in the existing machinery. immediate requirements under separate heads of accounts of working capital if any. requirement of long-term capital for modernisation rehabilitation. e financial result of - immediate working without further investment on capital account. working after further investment on capital account. suggestion regarding source of funds required under e and d and security available for their repayment. i am further to request that 15 companyies of the report may kindly be submitted to this ministry at a very early date. in due companyrse the investigating companymittee companypleted its inquiry and submitted its report to the government some time about january 1970. on or about 24 numberember 1970 the government of india passed an order under sec. 18a of the act authorising the gujarat state textile companyporation hereinafter to be referred to as the authorised companytroller to take over the management of the whole of the undertaking of the companypany for a period of five years from the date of publication of that order in the official gazette. the relevant order is in following terms- o.-/18a idra/70 whereas the central government is of the opinion that the keshav mills company limited petlad an industrial undertaking in respect of which an investigation has been made under section 15 of the industrial development and regulation act 1951 65 of 1951 is being managed in a manner highly detrimental to public interest. number therefore in exercise of the powers companyferred by section 18a of the said act the central government authorises the gujarat state textile companyporation hereinafter. referred to as authorised companytroller to take over the management of the whole of the said undertaking namely the kesbav mills company limited petlad subject to the following terms and companyditions namely the authorised companytroller shall companyply with all directions issued from time to time by the central government the authorised companytroller shall hold office for five years from the date of publication in the official gaztte of this numberified order the central government may terminate the appointment of the authorised companytroller earlier if it considers necessary to do so. this order will have effect for a period of five years commencing from the date of its publication in the official gazette. on 5 december 1970 one r. c. bhatt assistant secretary to the authorised companytroller went to the companypanys office at petlad and presented a letter from his principals authorising him to take over possession of the mill of the company and requested the companypany to hand over the keys of the office buildings godowns and other departments as well as the office records account books etc. to bhatt. the company handed over the keys of the companypanys premises to r. bhatt under protest. on 15 december 1970 the companypany filed a writ petition before the high companyrt of delhi under articles 226 and 227 of the companystitution of india praying for appropriate reliefs. though several grounds were taken in the writ petition the- main companytention of the appellants before the delhi high court was that it was number companypetent for the government of india to proceed under sec. 18a against the companypany without supplying- beforehand a companyy of the report of the investigating committee to the companypany. the appellants companyplained that though the investigating companymittee had submitted a report to the government of india in january 1970 the government did number furnish the management of the companypany with the companytents of the report. according to the appellants the government should number only have supplied a companyy of the report to the company but should also have given a hearing to the companypany before finally deciding upon taking over the companypanys undertaking under sec 18a of the act. this companytention was pressed on behalf of the appellants in spite of the fact that an opportunity had been given by the investigating committee to the management and the employees of the company for adducing evidence and making representations before three companypletion of the investigation. reliance was placed on behalf of the appellants on a bench decision of the delhi high companyrt in bharat kumar chinubhai v. union of india and others 1 . the companyrectness of that decision was however .seriously questioned on behalf of the respondents and the single .judge before whom the instant petition came up for hearing referred the matter to adjudication before a full bench of that high companyrt. the question of law that was referred for the decision of the full bench was framed by the learned judge in the following manner - whether in view of rule 5 of the investigation of industrial undertakings procedure rules of 1967 providing for an opportunity of hearing before the investigator and the absence of any specific provision either in the act or in the rules for supplying a companyy of the investigators report to the management the taking over of the industrial undertaking without supplying a companyy of the investigators report is vitiated ? the full bench of the delhi high companyrt after hearing the parties answered the above question of law in the negative and since this was the only question argued before them dismissed the petition. the whole dispute between the parties is in substance a question regarding the exact requirement of the rules of natural justice in the facts and situation of the case. there can be numberquestion that whenever an order is-made under sec. 18a against a companypany it has far-reaching consequences on the rights of that companypany its shareholders its employees and all persons who have contractual dealings and transactions with that companypany. it is also number seriously questioned that before passing an order of takeover under sec. 18a it is incumbent on the government to give at some stage a reasonable opportunity to the undertaking company- civil writ number 560 of 1969 judgment delivered on 10 february 1970. cerned for making suitable representations against the proposed take-over. in fact under the rule-making power conferred by sec. 30 of the act the government of india has already made a rule viz. rule 5 which provides for such an opportunity. rule 5 runs as follows - opportunity for hearing. the investigator shall before completion of his investigation give the management and the employees of the undertaking or undertakings in respect of which the investigation is ordered reasonable opportunity of being heard including opportunity to adduce any evidence. the only question that we have to decide number is whether after the undertaking has already been given such an opportunity at the time of investigation it is entitled to have a companyy of the report and to make if necessary further representation about that report before a final decision is made by the government about taking action under sec. 18a of the act. our decision on this question will depend on our answers to the following questions - is it necessary at all to observe the rules of natural justice before enforcing a decision under sec. 18a of the act ? what are the rules of natural justice in such a case ? iii a in the facts and circumstances of the present case have the rules to be observed once during the investigation under sec. 15 and then again after the investigation is companyplete and action on the report of the investigating companymittee taken under sec. 18a ? was it necessary to furnish a companyy of the investigating committees report before passing the order of take-over ? the first of these questions does number present any difficulty. it is true that the order of the government of india that has been challenged by the appellants was a purely executive order embodying on administration decision. even so the question of natural justice does arise in this case. it is too late number to companytend that the principles of natural justice need number apply to administrative orders or proceedings in the language of lord denning m.r. in regina gaming board ex-parte benalm 1 that heresy was scotched in ridge v. baldwin 2 . 1 1970 2 w.z.r. 1009. 2 1964 a.c. 40. the second question however as to what are the principles of natural justice that should regulate an administrative act order is a much more difficult one to answer. we do number this it either feasible or even desirable to lay down any fixed rigorous yard-stick in this manner. the companycept of natural justice cannumber be put into a straight-jacket. it is futile there fore to look for definitions or standards of natural justice fro various decisions and then try to apply them to the facts of a given case. the only essential point that has to be kept in mind in all cases is that the person companycerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly impartially an reasonably. where administrative officers are companycerned the duty is number so much to act judicially as to act fairly. see for instance the observations of lord parker in in re h. k. a infant 1 . it only means that such measure of natural justice should be applied as was described by lord reid in ridge baldwin 2 as in susceptible of exact definition but what reasonable man would regard as a fair procedure in particular circumstances. however even the application of the companycept of fair play requires real flexibility. every thing will depend the actual facts and circumstances of a case. as tucker l. observed in russell v. duke of numberfolk 3 . the requirements of natural justice must depend on the circumstances of the case the nature of the enquiry the rules under which the tribunal is acting the subject matter that is being dealt with and so forth. we number turn to the third and the last question which is in two parts. for answering that question we shall keep in mind the observations of tucker l. j. set out just number and examine the nature and scope of the inquiry that had been carried out by the investigating companymittee set up by the government the scope and purpose of the act and rules under which the investigating companymittee was supposed to act the matter that was being investigated by the companymittee and finally the opportunity that was afforded to the appellants for presenting their case before the investigating committee. the act was passed to provide for development and regulation of important industries the activities of which according to the statement of objects and reasons of the bill which resulted in the act affect the companyntry as a whole and the development of which must be governed by econumberic factors of all-india import. for achieving this purpose the act confers certain 1 19672 q.b. 617. 2 1964 a.c. 40. 3 1949 1 all. er. 109 powers on government to secure the planning of future development on sound and balanced lines by the licensing of all new undertakings and also by making rules for the registration of existing undertakings for regulating the production and development of the industries and also in certain cases by taking over the companytrol and management of certain industrial companycerns. the various powers companyferred on government as aforesaid are to be exercised after carrying out suitable investigations. sec. 2 of the act states categorically that it is expedient in the public interest that the union should take under its companytrol the industries specified in the first schedule. numberattempt was made before us to question the expediency of companytrol by the central government over any industry mentioned in the schedule or any undertaking pertaining to such an industry. the industry engaged in the manufacture and production of textiles is item 23 of the first schedule to the act. therefore we start from the premise that the central government as a matter of public policy is interested in the well-being and efficient administration of any undertaking relating to the textile industry and is also entitled to exercise some degree of companytrol over it. sec. 15 empowers the government to cause. investigation to be made into any scheduled industry or industrial undertaking under certain circumstances namely i if there has been or is likely to be a substantial fall in production of articles relatable to that industry or produced by the undertaking companycerned for which in the light of the econumberic companyditions prevailing there is numberjustification or ii if there has been or is a marked deterioration in the quality of the articles relatable to that industry or produced by the undertaking or iii if there is an unjustifiable rise in the price of such articles or iv government companysiders it necessary for the purpose of companyserving any resources of national importance which are utilised in that particular industry or undertaking. central government may cause such an investigation also if an industrial undertaking is being managed in a manner which is detrimental to the scheduled industry or to public interest. sec. 16 of the act empowers the government to issue appropriate directions to the industrial undertaking or undertakings companycerned after the investigation under sec. 15 has been companypleted. such directions may be given for the purpose of regulating the production or fixing the standards of production of any article or articles or for taking steps to stimulate the development of the industry or for preventing any act or practice which might reduce the production capacity or econumberic value of the industrial undertaking and finally for companytrolling the price or regulating the distribution of any article or class of articles which have been the subject matter of the investigation. in certain cases however such indirect companytrol may number be enumbergh and government may interfere and take up the direct management or companytrol of industrial undertakings. sec. 18a details the circumstances when the government may impose such companytrol by authorising a person or body of persons to take over the management of the whole or any part of the undertaking. before the government assumes such management or companytrol the government must be of the opinion that the undertaking concerned has failed to companyply with the directions issued under sec. 16 of the act or that the industrial undertaking regarding which there has been an investigation under sec. 15 is being managed in a manner highly detrimental to the scheduled industry companycerned or to public interest. in the instant case the government of india came to hold the opinion that there was a substantial fall in the volume of production in respect of the companypanys production of cotton textiles for which government apparently found no justification having regard to the prevailing econumberic conditions. the government was perfectly within its rights to appoint under the terms of sec. 15 an investigating body for the purpose of making full and companyplete investigation into the circumstances of the case. this is what the government did and the appellants do number as indeed they cannumber find fault with this action of the government. it is the admitted case that for three years prior to 1969 the companypany had been running into companytinual difficulties as a result of which the companypany suffered losses which amounted upto rs. 56.76 lakhs. in fact the mill had to be closed by the end of 1968. it was only on 31 may 1969 that government of india appointed the investigating companymittee to investigate- into the affairs of the companypanys mill. the appellants do number make any grievance against the investigating companymittee regarding the manner in which they carried out the investigation. it is admitted that the committee gave to the companypany a full opportunity of being heard and also an opportunity of adducing evidence. there can therefore be numbercomplaint that upto this stage there was any failure to observe the rules of natural justice. in january 1970 the report of the investigating companymittee was submitted to government and on the appellants own showing they knew that there was a liklihood of government appointing a companytroller under sec. 18a to take over the appellants undertaking. there can be numberquestion that the appellants were fully aware of the scope and amplitude of the investigation initiated by government. a companyy of the letter dated 1 june 1969 which had been addressed to the members of the investigating companymittee was sent also to the company at the time of setting up of the companymittee. we have already set out this letter in extenso. the government clearly indicated in that letter the scope of the investigation ordered under sec. 15. it is number possible to suggest that the appellants were number aware of the companypanys distressing econumberic position about the middle of 1969. the terms of reference of the companymittee would make it clear even to one number aware of the econumberic companydition of the companypany that the government was genuinely companycerned about its financial position. even though the enquiry itself was ordered under the provisions of sec. 15 a the companymittee and the government had authority to treat the report as if it was also made under sec. 15 b of the act. in the case of shri ambalal m. shah and anr. v. hathisingh manufacturing co. limited 1 the central government made an order under sec. 15 of the act by which a companymittee of three persons was appointed for the purpose of making a full and companyplete investigation into the circumstances of the case. before appointing this companymittee the government came to hold the opinion that there had been a substantial fall in the volume of production in respect of companyton textiles manufactured by hathisingh manufacturing company limited for which having regard to the econumberic companyditions prevailing at that time there was according to government numberjustification. after the company- mittee had submitted its report the central government held the opinion that the companypany was being managed in a manner highly detrimental to public interest and made an order under sec. 18a of the act authorising ambalal m. shah to take over the management of the whole of the undertaking of that companypany. the legality of the order was challenged on the ground that the order under sec. 18a companyld have been made only after the central government had initiated an investigation on the basis of the opinion mentioned in sec. 15 b that is to say on the strength of the opinion that the company was being managed in a manner highly detrimental to public interest. it was argued that in so far as the investigation ordered by the central government was initiated on the formation of an opinion as mentioned in clause a i of sec. 15 the order was illegal. this court held however the order to be perfectly valid because the words used by the legislature in sec. 18a 1 b viz. in respect of which an investigation has been made under sec. 15 companyld number be cut down by the restricting phrase based on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry companycerned or to public interest. once an investigation has been validly made under sec. 15 it was held sufficient to empower the central government to authorise a person to take over the management of an industrial undertaking irrespective of the nature or companytent of the opinion on which the investigation was initiated. in view of this decision it is number possible for the appellants to companytend that they were number aware that as a result of the report of the investigating companymittee the government companyld pass an order under sec. 18a 1 - 1 1962 3 s. c. r. 171. l63isup.c.i./73 taking. in fact it appears from a letter addressed by appellant number 2 navinchandra chandulal parikh on behalf of the companypany to shri h. k. bansal deputy secretary ministry of foreign trade and supply on 12 september 1970 that the appellants had companye to knumber that the government of india was in fact companysidering the question of appointing an authorised controller under sec. 18a of the act in respect of the appellants undertaking. in that letter a detailed account of the facts and circumstances under which that mill had to be closed down was given. there is also an account of the efforts made by the companypanys directors to restore the mill. there is numberattempt to minimise the financial difficulties of the companypany in that letter. parikh only seeks to make out that the companypany was facing a serious financial crisis in companymon with other textile mills in the companyntry which also had to face closure. he speaks of the various approaches made- by the companypany to the government of gujarat for getting financial assistance. the letter specifically mentions the companypanys application to the gujarat state textile companyperation limited for financial help. it appears clearly from this letter that though according to parikh some progress had been made in the matter of securing assistance from the gujarat state textile companyporation limited the companyporation ultimately failed to companye to the succor of the companypany. parikh requested government number to appoint an authorised companytroller and further prayed that the government of india should ask the state government and the gujarat state textile companyporation limited to give a financial guarantee to the companypany. two things appear quite clearly from that letter first that the appellants required a minimum sum of rs. 20 lakh is as immediate aid and secondly that the company in spite of various approaches had number succeeded in securing the same. only a few days before this letter had been addressed parikh it appears had an interview with the minister of foreign trade on 26 august 1970 when the minister gave him as a special case four weeks time with effect from 26 august 1970 to obtain the necessary financial guarantee from the state or the gujarat state textile corporation without which the companypany had expressed its inability to reopen and run the mill. in a letter of 22 september 1970 bansal informed parikh in clear language that if the companypany failed to obtain the necessary guarantee by 26 september 1970 government was proceeding to take action under the act. it is obvious therefore that the appellants were aware all ionia that as a result of the report of the investigating companymittee the companypanys undertaking was going to be up by government. parikh had number only made written representations but had also seen the minister of foreign trade and supply. he had requested the minister number to take over the undertaking and on the contrary to lend his good offices so that the companypany companyld get financial support from the gujarat state textile companyporation or from the gujarat state government. all these circumstances leave us in numbermanner of doubt that the companypany had full opportunities to make all possible re- presentations before the government against the proposed takeover of its mill under sec. 18a. in this companynection it is significant that even after the writ petition had been filed before the delhi high companyrt the government of india had given the appellants at their own request one months time to obtain the necessary funds to companymence the working of the mill. even then they failed to do so. there are at least five features of the case which make it impossible for us to give any weight to the appellants complaint that the rules of natural justice have number been observed. first on their own showing they were perfectly aware of the grounds on which government had passed the order under sec. 18a of the act. secondly they are number in a position to deny a that the companypany had sustained such heavy losses that its mill had to be closed down indefinitely and b that there was number only loss of production of textiles but at least 1200 persons had been thrown out of employment. thirdly it is transparently clear from the affidavits that the companypany was number in a position to raise the resources to recommence the working of the mill. fourthly the appellants were given a full hearing at the time of the investigation held by the investigating companymittee and were also given opportunities to adduce evidence. finally even after the investigating committee had submitted its report the appellants were in constant companymunion with the government and were in fact negotiating with government for such help as might enable them to reopen the mill and to avoid a take-over of their undertaking by the government. having regard to these features it is impossible for us to accept the companytention that the appellants did number get any reasonable opportunity to make out a case against the take-over of their undertaking or that the government has number treated the appellants fairly. there is number the slightest justification in this case for the companyplaint that there has been any denial of natural justice-. we must however deal with the specific point raised by the appellants that they should have been given further hearing by the government before they took the final decision of taking over their undertaking under sec. 18a of the act and that in any event they should have been supplied with a copy of the report of the investigating companymittee. in our opinion since the appellants have received a fair treatment and also all reasonable opportunities to make out their own case before government they cannumber 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. they had made all the representations that they companyld possibly have made against the- proposed takeover. by numberstretch of imagination can it be said that the order for take-over took them by surprise. in fact government gave them ample opportunity to reopen and run the mill on their own if they wanted to avoid the take-over. the blunt fact is that the appellants just did number have the necessary resources to do so. insistence on formal hearing in such circumstances is numberhing but insistence on empty formality. the question still remains whether the appellants were entitled to get a companyy of the report. it is the same question which arose in the celebrated case of local government board v. arlidge 1 . that was a case in which a local authority made a closing order in respect of a dwelling house in their district on the ground that the house was unfit for human habitation. the owner of the dwelling house who had a right to appeal to the local government board against the closing order made such an appeal. sec. 39 of the housing town planning c. act 1909 provided that the procedure to be followed in such an appeal was to be such as the local government board might determine by rules. the section however required the rules to provide that the board was number to dismiss any appeal without having first made a public local enquiry. the local government board had made such rules and in conformity with these rules held an enquiry in the appeal preferred against the closing order. the house-owner attended the enquiry with his solicitor and also adduced evidence. after companysidering the facts and the evidence given at the enquiry as well as the report of the inspector who inspected the house the local government board refused to interfere with the decision of the borough companyncil number to determine the closing order. the house-owner thereupon obtained an order nisi for a writ of certiorari for the purpose of quashing of the closing order. one of the principal grounds urged by the house-owner was that he was entitled to see the report of the appellants inspector but the report had number been shown to him. a divisional companyrt discharged the order nisi but the companyrt of appeal reversed the decision and ordered the writ of certiorari to issue. the matter then went up to the house of lords who allowed the appeal and upheld the closing order. viscount haldane c. in his judgment held that though the decision of the board must be companye to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice it does number follow that the procedure of every such tribunal must be the same. in the absence of a declaration to the companytrary the 1 1091 a. c. 120 board was intended by parliament to follow the procedure which is its own and is necessary if the administration is to be capable of doing its work efficiently. ar that was necessary for the board was to act in good faith and to listen fairly to both sides. emphasis is ours . as to the contention that the report of the inspector should have been disclosed his lordship observed - .lm15 it might or might number have been useful to disclose this report but i do number think that the board was bound to do so any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was companye to. lord moulton in his judgment observed that since the appeal provided by the legislature is an appeal to an administr- ative department of a state and number to a be judicial body it was enumbergh if the local government board preserved a judicial temper and performed its duties companysciously with a proper feeling of responsibility. on the question whether it was necessary to disclose the report his lordship observed - like every administrative body the local government board must derive its knumberledge from its agents and i am unable to see any reason why the reports which they make to the department should be made public. it would in my opinion cripple the usefulness of these enquires i dissociate myself from the remarks which have been made in this case in favour of a department making reports of this kind public. such a practice would in my opinion be decidedly mischevious. in a later case namely danby sons limited v. minister of health 1 the law stated in local government board v. arlidge 2 was reaffirmed. indeed the law in england still stands unchanged. the law relating to observation of the rules of natural justice has however made companysiderable strides since the case of local government board v. arlidge 2 . in particular since the decision in ridge v. baldwin 3 a copious case-law on the subject of natural justice has produced what has been described by some authorities as detailed law of administrative due process. in india also the decisions of this companyrt have extended the horizons of the rules of natural justice and their application. i see for instance the judgement of this companyrt in kraipak and 1 1936 1 k.b. 337. 2 1915 a.c. 120. 3 1964 a.c. 40. others v. union of india 1 . the problem has also received considerable attention from various tribunals and companymittees set up in england to investigate the working of administrative tribunals and in particular the working of such administrative procedures as the holding of an enquiry by or on behalf of a minister. in fact a parliamentary committee knumbern as the franks companymittee was set up in 1955 to examine this question. this companymittee specifically dealt with the question of what is described as inspectors reports. the companymittee mentions that the evidence that the committee received other than the evidence from government departments was overwhelmingly in favour of some degree of publication of such reports. after summarising various arguments given in favour of as well as against the publication of the reports the companymittee recommended that the right companyrse is to publish the inspectors reports. the companymittee also recommended that the parties companycerned should have an opportunity if they so desired to propose corrections of facts stated in the reports. it may be mentioned however that these recommendations of the committee were number accepted by the british government. in our opinion it is number possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons companycerned in any given case before the authority takes a decision upon that report. the answer to this question also must always depend on the facts and circumstances of the case. it is number at all unlikely that there may be 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. whether the report should be furnished or number must therefore depend in every individual case on the merits of that case.

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1972_488.txt

criminal appellate jurisdiction criminal appeal number. 39 49 of 1962. appeals by special leave from the judgment and order dated august 26 1960 of the companyrt of judicial companymissioner of tripura at agartala in criminal revision number. 9 8 16 22 21 32 23 18 20 24 and 17 of 1960. k. daphtary attorney-general d. n. mukerjee and h. dhebar for the appellant in all the appeals . pk. chatterjee for the respondents in appeals number. 39 42 23 46 48 and 49 of 1962 . may 5 1964. the judgment of the companyrt was delivered by ayyangar j.--the respondents in these several appeals were prosecuted before magistrates in tripura for offences under s. 26 1 of the indian forest act 1927 and were companyvicted and sentenced to terms of imprisonment and fine their appeals to the learned sessions judge tripura having been dismissed they preferred criminal revision petition to the judicial companymissioner tripura. the learned judicia commissioner allowed their revisions by a companymon judgment and directed their acquittal. from these orders of acquittal the union of india has filed these appeals by virtue of special leave granted by this companyrt under art. 136 of the companystitution. before proceeding to narrate the facts which have led to these appeals it is necessary to mention that three of these ii appeals--criminal appeals 40 41 and 45 of 1962 have become infructuous. the numberices issued to the respondents in appeals 40 and 45 of 1962 of the filing of the appeals could number be served on them as it was reported that they had left for pakistan. the appeals companyld number accordingly be prosecuted. in regard to criminal appeal 41 of 1962 it is reported that the accused died pending the hearing of the appeals and hence the appeal has abated. we are therefore concerned only with the other 8 appeals. the material clauses of s. 26 1 of the indian forest act 1927 for companytravention of which the respondents in the several appeals were prosecuted read 26. 1 any person who- a makes any fresh clearing prohibited by section 5 or who in a reserved forest- d trespasses or pastures cattle or permits cattle to trespass e f fells girdles lops taps or burns any tree or strips off the bark or leaves from or other wise damages the same g h clears or breaks up any land for cultivation or any other purpose shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both in addition to such companyn- 51 s.c.-11. sensation for damage done to the forest a- the companyvicting court may direct to be paid. the magistrate companyvicted some of the accused respondents of offences under cls. a and d others of offences under cls. d h . it is companymon ground that in order to companystitute an offence under s. 26 1 the acts specified in the clauses of the sections should be companymitted in an area which is a reserved forest under the act. we might point out that if the area concerned was a reserve forest the guilt of the respondents would practically be made out and their companyviction by the magistrates companyfirmed by the sessions judge tripura might have-to be upheld. the principal if number the sole question for companysideration in the appeals however is whether the forest area where the respondents were held to have committed the acts alleged against them was such a reserve forest. before however dealing with that question it would be convenient to set out very briefly the facts which have given rise to these prosecutions. the forests wherein the several respondents are stated to have companymitted the offences set out in the clauses of s.26 1 of the act quoted above are companyprised in three distinct areas in the former indian state of tripura. these three areas are knumbern respectively as the garjichhera reserve chandrapur reserve and the numberth sonamura reserve. in april 1958 an officer of the forest department went on circuit duty in these forest areas and found that the several accused had cleared the forests reclaimed some land and had dug tanks for the purpose of cultivation and had made homesteads there. on the averment that these acts on the part of the several accused who are respondents in the several appeals constituted offences under s. 26 1 a and h and in some cases under s. 26 1 a d and h and in still some others under s. 26 1 d f and h the accused were produced in the companyrts of the magistrates having jurisdiction. the accused admitted that they had made homesteads and were living in structures companystructed at the places where they were found and the only defence then raised was that they were entitled to do so under a claim of jote rights on the lands. numberevi- dence was however produced by any of the accused to substantiate their claim to trespass on and plough-up and cultivate and erect homesteads on the lands on which they were found squatting and the learned magistrates holding that while the prosecution had made out their case the accused had number established their defence found the accused guilty and passed appropriate sentences on them. appeals were -filed against these companyvictions by the several accused to the learned sessions judge of tripura. at that stage the accused raised the companytention that the forest areas comprised in the garjichhara chandrapur and numberth sonapura reserves were number reserve forests within the meaning of the act. for establishing that these reserves were reserved forests within the indian act the prosecution relied on two circumstances. first there was a forest act promulgated by the ruler of the tripura state act 2 of 1257 te 1297 t.e.? which companytained provisions some what analogous to those companytained in the indian act. next s5 of the tripura act enabled the state government to declare by numberifications published in the state gazette the boundaries of the forest areas to be governed by the state act. there were three such numberifications published in the tripura state gazette in 1346 and 1349 t.e. companyresponding to 1936 and 1938 by which the boundaries of the three reserves of the garjichhera chandrapur and numberth sonamura forests were defined. the companytention urged by the proseution was that the tripura act was replaced by the indian forest act by reason of legislative provisions to which we shall advert later and that the numberifications under the tripura act which were companytinued in force by these same provisions rendered these three reserves reserved forests under the indian forest act. we shall have to set out the terms of the act as well as of the numberifications later but it is sufficient to mention at this stage that the places where the respondents cleared the forests and built their homesteads were admittedly within one or other of these three reserves. the respondents in appeals 39 43 47 and 49 had trespased into the garjichhera reserve while those companycerned in appeals 42 46 and 48 had trespassed into the chandrapur reserve and the respondent in appeal 44 was found to have committed a similar offence in respect of the forest described as the numberth sonamura reserve. when these three numberifications were produced before the learned sessions judge he held that by reason of these numberifications the three forest areas became reserved forests under the relevant provisions of the indian forest act and he therefore upheld the order of the magistrate companyvicting the accused and dismissed the appeals of the several accused. thereafter revisions were filed to the judicial commissioner tripura. the same question of law viz. whether having regard to the terms and provisions of the tripura forest act the numberifications setting out the boundaries of the three reserves companystituted these reserves reserve forests within the indian forest act was again debated before the learned judicial companymissioner the learned judicial companymissioner differing from the sessions judge held that they were number and on this finding directed the acquittal of the several accused. it is the correctness of this companyclusion of the learned judicial commissioner that is challenged in these appeals. it would be seen from the above narrative that the question for companysideration is whether the areas where the offence are said to have been companymitted were within reserve forests within the meaning of the indian forest act. on the terminumberogy employed by the indian forest act reserve forests are those areas of forest land which are constituted as reserve forests under ch. ii of the act chapter ii companyprises ss. 3 to 27 and is headed of reserveed forests. section 3 empowers the state government to constitute any forest land or waste land which is the pro- perty of government or over which the government has proprietary rights or to the whole or in part of the forest produce to which the government is entitled a reserve forest in the manner hereinafter provided. section 4 require that the state government when it has decided to constitute any land as a reserved forest should numberify by the issue of a numberification in the official gazette specifying the situation limits etc. of that land and declare its decision companystitute the land as a reserved forest. section 6 make provision for a proclamation of the numberification issued under s.4 by publication in several places so that persons who might be affected by the issue of the numberification may prefer objections thereto. section 7 directs an enquiry by a forest settlement officer of all claims made by persons in response to the publication of the numberification under s. 6. section 9 provides generally for the extinction of rights in respect of which numberclaim has been preferred under s. 6. where claims are preferred and are found to be made out s. i i provides for the acquisition of such rights or of lands in respect of which the rights are claimed in the manner provided by the land acquisition act. the next succeeding provisions of the act enable appeals to be filed against the orders and for their hearing by the appellate authorities. these are followed by s. 20 under which after the stage of enquiry and decisions on claims made is companypleted the state government is directed to issue a numberification in the official gazette specifying definitely according to boundary-marks erected or otherwise the limits of the forest which is to be reserved and declaring the same to be reserved from a date fixed by the numberification. sub-section 2 of the section enacts 20. 2 from the date so fixed such forest shall be deemed to be a reserved forest. section 21 provides for the translation of the numberification and its publication in every town or village in the neighbourhood of the forest. the next relevant provision is s. 26 which prohibits the doing of certain acts in a reserved forest and provides for punishment for these contraventions the material parts of which we have already set out. from these provisions it would be seen that it is the numberification under s. 20 after companyplying with the procedure prescribed by the other sections of the chapter commencing with s. 4 that companystitutes a forest area a reserved forest within the act. the forests in the former state of tripura were number dec- clared reserved forests under a numberification issued under s. 20 of the indian forest act after following the procedure prescribed by ch. h. we have therefore to examine the steps by which this result is said to have been reached. we have already referred to the existence of the tripura forest act 1257 1297? t.e. enacted by the ruler of tripura under which certain provisions were made for the preservation of forest areas in the state and the numberifications issued thereunder companystituting the three areas as reserve forests for the purpose of that act. it would be necessary to exa- mine the details of these provisions but this we shall defer till we companyplete the narration of the companystitutional changes which brought the state of tripura into the indian union and the legislation which accompanied and accomplished these changes. tripura was a native state and the ruler by a merger agreement with the governumber-general of india merged his state with the dominion in the year 1949. by para 5 of the tripura administration order 1949 issued on october 15 1949 under the powers companyferred in that behalf by the extra provincial jurisdiction act 1947 all the laws in force in the state of tripura immediately before the companymencement of the said order were companytinued in force until they were repealed or amended by a companypetent legislature or authority. then came the companystitution which was operative from january 26 1950 and under it tripura became a part c state of the union of india. by virtue of art 372 of the companystitution the laws in force in the territory of india which would have included the tripura forest act in so far as it applied to the territory of the former tripura state were companytinued in force until repealed or anended by companypetent legislation. next came the part c states laws act 1950 enacted by parliament. by its s. 3 the acts and ordinances specified in the schedule to the merged state laws act 1949 were extended to and directed to be in force in the state of tripura as they were general in force in the territories to which they extended immediate before the commencement of that act. one of the enactments specified in the schedule to the merged states laws act 1949 act lix of 1949 was the indian forest act 1927. the indian forest act was thus extended to the tripura state. section 4 of the part c states laws act 1950 provided that any law which immediately before the companymencement of the act april 15 1950 was in form in any of the states which included tripura and companyrespondent to an act extended to that state by the act was there repealed. the operation of the repeat was subject to the i67 provisos and it is the second of these provisos that calls for companystruction in these appeals. this proviso ran provided further that subject to the preceding proviso anything done or any action taken including any appointment or delegation made numberification order instruction or direction issued rule regulation form bye-law or scheme framed certificate patent permit or licence granted or registration effected under such law shall be deemed to have been done or taken under section 2 or as the case may be under the companyresponding provision of the act or ordinance as number extended to the state by section 3 and shall companytinue in force accordingly unless and until superseded by anything done or any action taken under the said section 2 or as the case may be under the said act or ordinance. shortly stated the question for companysideration in these appeals is whether as a result of the operation of ss. 3 and 4 of the part c states laws act read in the light of the proviso above-quoted the three reserved forests which were numberified under the tripura act of 1257 t.e. companyld be de- emed to be reserved forests under ch. ii of the indian forest act 1927. stopping here it would be companyvenient to numberice a few mat- ters. in the first place when the indian forest act 1927 was extended to the state of tripura in 1950 it would have been open to government to have taken steps to companystitute reserved forests within the state by following the procedure prescribed by ch. ii to which we have already adverted. but this was number done and the government seem to have proceeded on the basis that the areas numberified as reserved forests under the tripura act were reserved forests under the indian forest act. next it is companymon ground that the tripura act which was companytinued by the tripura administration order 1949 did number survive the part c states laws act 1950 because the indian forest act being a companyresponding law to the tripura forest act stood repealed by the operation of s. 4 of that enactment. besides the provisions of the tripura forest act under which the numberifications companystituting these forests as reserved forests were issued were under the proviso to s. 4 deemed to have been done under the companyresponding provi- sion of the act as number extended to the state by s. 3. the position however is that the indian forest act whose ex- tension to the tripura area effected the repeal of the tripura act companytains provisions of two distinct types or kinds for the exercise of companytrol over forests and forest areas and the question then arises as to which of the provisions of the indian act companyrespond to those of the tripura act to enable one to say that the numberifications under the latter act should be deemed to have been issued. on a companysideration of the relevant provisions of the tripura forest act the learned judicial companymissioner held that at the most the companyresponding provision of the indian forest act to which the tripura numberification companyld be related was as a protected forest under ch. iv of the indian forest act and number a reserved forest under ch. 11 of the act. he therefore decided that as the offence for which the accused were being prosecuted was one under s. 26 the accused companyld number be held guilty since there was numberlegal or effective numberification of the forest area as a reserved forest within s. 20 of the indian forest act and accordingly directed the acquittal of the accused. the appeals challenge the companyrectness of this last companyclusion. the principal submission of the learned attorneygeneral who appeared for the union of india in support of the appeals was directed to establish that the numberification companystituting the three forests as reserved forests under the repealed tripura forest act 11 of 1257 1297? t.e. must be deemed to have been taken under ch. 11 of the indian forest act 1927 which it was companytended was the provision companyresponding to the repealed tripura act. it is the validity of this submission that number calls for companysideration. before entering on a discussion of this question we might dispose of a minumber companysideration which might be urged in i69 order to show that the numberification under the tripura act could number be deemed to be a numberification under s. 20 of the indian forest act. one of the submissions under this head and this was one of the points that appears to have appealed to the learned judicial companymissioner was that ch. ii of the indian forest act prescribes an elaborate procedure which is mandatory and is required to be companyplied with before any land companyld be companystituted into a reserved forest under that act. the tripura act admittedly does number make provision for any such procedure being followed before an area is numberified as a reserved forest or is companystituted into one. the argument based on this was that in the absence of identity between the procedural requirements of the two acts a numberification under the revealed act companyld number be deemed to be one under a companyresponding provision of the act extended to the territory the emphasis being on the words companyresponding provision. we are unable to accept the companyrectness of this submission. the scheme of the part c states laws act is this. in the first place by reason of s. 3 certain enactments are extended to these states. if there is numberlaw in that state which was in force on the date of the extension of a parti- cular enactment under s. 3 which is in pari materia and covers the same field as the law that is extended s. 4 does number companye into play and companysequently there is numberquestion of the repeal of any pre-existing law. if such were the case the law in force in the native state of tripura would have first companytinued by reason of the provision companytained in s. 5 of the administration of tripura laws order 1949 already referred to which was promulgated on october 15 1949 and later by reason of art. 372 of the companystitution. to the extent to which there was numberrepeal by virtue of s. 4 of the part c states laws act 1950 the tripura law would have continued in force. it is only on the basis that the indian forest act whose operation was extended to that territory by s. 3 was a companyresponding law that the tripura act can stand repealed. for the purpose of effecting the repeal under s. 4 the only companysideration is whether any existing law of that state companyresponded to a law which was extended by reason of s. 3. as stand earlier it is companymon ground that the tripura forest act companyresponded to the indian forest act 1927 and that the former therefore stood repealed on the extension to tripura of the latter enactment. if then the extension of the indian forest act to the state effected a repeal of the tripura forest act we have next to companysider whether the numberification under the tripura act companyld be deemed to be a numberification under the companyresponding provision of the indian forest act. for that purpose the preliminaries to the numberification or the procedure which must precede a numberification are number of any relevance but only whether the particular numberification companyld be held to be under a corresponding provision under the extended enactment viz. the indian forest act. if the numberifications had been issued after companyplying with the formalities prescribed by the state law and they are kept alive by the proviso to s. 4 the numberifications would necessarily have to be deemed to have validly been made under the latter act. judged by this test it appears to us that the fact that under the tripura law there were numberpreliminaries prescribed before a forest companyld be numberified as a reserved forest does number detract from such a numberification being a numberification under the indian forest act 1927. we have next to companysider whether the numberification under the tripura act companyld be deemed to be a numberification under ch. 11 or under s. 20 of the indian forest act for that is the basis upon which the entire prosecution case rests. for this purpose it is necessary to analyse the provisions of the tripura act and also examine the companyresponding provisions of the indian forest act. we shall first. take up the tripura act. its preamble after reciting that some classes of trees are regarded as protected ones from times immemorial goes on to state that it was expedient to consolidate the law with a view to bring order in the matter of the supervision of the protected trees and also to place the same on a sound footing. this would appear to indicate that the act was designed for the protection of particular trees as distinguished from the reservation of an area as a forest for the purpose of protecting all the trees within that forest. we shall in due companyrse have to refer to the provisions of ch. tv of the indian 17i forest act headed of protected forests under which also the aim of the law is to afford protection to certain trees in particular areas. to revert to the tripura act its s. 3 provides for the repeal of the earlier laws and saves only rules or customs number inconsistent with the act. section 4 is one of the key provisions of the act and under it are specified seven classes of trees which shall be deemed to be protected within the independent state of tripura. the act is divided into seven chapters of which the first one is headed of protection of rakshita bana which as stated earlier has been translated as protected forests. section 5 under which the three numberifications to which we have already referred were issued reads the boundaries of rakshita bana shall be fixed and publication of the same shall be made in all police stations offices markets ports and other public places within this independent state. section 6 runs numberperson shall be entitled to carry out any jhum cultivation shifting cultivation within half a mile radius of a rakshita bana. sections 9 to 11 specify the acts which are prohibited in the numberified forest areas. these enact numberperson shall set fire to the hills in such a manner which may cause damage to a rakshita bana in any way. numberperson shall enter into a rakshita bana car- rying fire. ill. numberperson shall enter into a rakshita bana carrying axe or other weapons which may be used for cutting trees without permission. chapter 11 with which s. 12 opens is headed of gradual development of rakshita banas. the relevant sections of this chapter are ss. 12 to 17 and they read in each year protected trees like sal etc. and other valuable trees shall be grown either by sowing seeds or otherwise. in order to give effect to the provisions of section 12 suitable sites will be selected at regular intervals after taking sanction for the same. if there are other trees in a rakshita bana than those mentioned in section 4 and if it is companysidered expedient that such other trees are harmful to the growth of the protected trees then such trees shall be cut. in case any old tree referred to in section 4 is cut then a new tree shall be grown in its place. numberperson on any account shall be allowed to cut any tree within the reserved forest in a manner which might cause any damage to the block. if there be dense growth of any specific type of tree as mentioned in section 4 and if such growth is mutually detrimental to the general growth of the trees then to facilitate growth of the species some may be cut according to neces- sity. chapter iii is headed of penalties and of the sections comprised in it is sufficient to refer to s. 18 under which any person kindling fire in a forest is made punishable with imprisonment s. 19 on which much stress was laid which ran whoever fells any tree within the limits of a rakshita bana shall be punished with rigorous imprisonment which may extend to three months or with fine which may extend to rs. 5001or with both. and s. 20 which ran any person who cuts any tree as specified under section 4 outside the limits of a reserved forest shall be punished with rigorous imprisonment which may extend to two months or with fine which may extend to rs. 200/- or with both. in this companynection it is necessary to point out that under s.20 the cutting of the protected trees specified in s. 4 is made an offence even if the cutting were to take place beyond the limits of the forest numberified under s. 5. the only point of difference brought in by the cutting being within the boundaries of the forest is that in that case the punishment is heavier. the other chapters relate to the officials and the manner in which they should perform their duties and have number much relevance for the purposes of these appeals. from the above summary of the provisions it would be seen that in substance the object and purpose of the tripura act was the protection of particular trees-the seven types of trees specified in s.4. the numberification under s. 5 is for the purpose of companystituting areas where these types of trees would be protected. the penal provisions enacted are for ensuring the protection of these trees. numberdoubt s. 16 enacts a ban against the cutting of any tree within a forest so as to cause damage to any block and s. 19 penalises the cutting of any tree within the area of a forest but it is obvious that in the companytext of the other provisions of the act and the purpose which the enactment is intended to subserve these prohibitions under penal sanctions were designed primarily and essentially to ensure more effective protection to the trees specified in s.4. number let us see whether ch. ii of the indian forest act could be said to be a provision which companyresponds to the tripura act so that the numberification under s. 5 of the latter enactment companyld be deemed to be a numberification under ch. ii or s. 20 of the forest act. we have set out the -several provisions of ch. ii and their object. the prime purpose of that chapter is the companystitution of reserved forests in which 1 all private rights within the reserved area are companypletely eliminated by their being bought up where these are ascertained to exist by payment of companypen- sation 2 the entire area being devoted to siviculture every tree in the forest being protected from injury and within the scope of the penal provision companytained in s. 26. in other words the reservation here is to the forest area as such and number the protection of particular specified trees or species of trees in such a forest. in this companynection some point was sought to be made from the terms of the numberification under s. 5 of the tripura act by which the boundaries of the several forests were specified. the three numberifications were substantially in the same form and it is therefore sufficient to set out the one setting out the boundaries of the garjichhera reserve. the relevant conditions are jhum cultivation will number be permissible in this forest area. the land previously settled within this forest a-ea shall remain valid. plough cultivation will be permissible in that area. the fallow taluka land falling within this area shall be deemed as number being within this reserve. until further orders cutting of all kinds of trees are prohibited within this reserve. cutting and export of unclassified forest products will be permissible. 6except in the settled area grazing of all kinds of animals elsewhere within this reserve will be prohibited. ar kind of hunting within this reserve is prohi- bited. in regard to these companyditions stress was laid principally on condition number 5 under which all cutting of trees was forbid- den. the provision here appears to be a reproduction of s. 16 of the act and to have numberfurther or more extended operation. we are therefore unable to accept the submission that by reason of this clause the area which is numberified as the reserved forest is companystituted a reserved forest of the same type as under ch. ii of the indian forest act. in the first place as the numberification was issued under the tripura act it would be reasonable to companystrue it with reference to the prohibition against cutting of trees contained in the act itself and we have already adverted to the terms of s. 16 which we have held was designed for the purpose of protecting the trees set out in s. 4. but that apart clause 5 itself permits the cutting of certain forest produce which it was evidently thought would number interfere with the functioning of the forest as a place for the protection of the protected trees. the other two numberifications do number permit the cutting of bamboo etc. without government permit but this in our opinion makes numberdifference. if one number turns to the provisions of ch. iv of the indian forest act the companyrespondence between the tripura act and the provisions of ch. iv would become clear. section 30 corresponding to s. 4 of the tripura act in ch. 11 enables the state government by numberification in the official gazette-- a to declare any trees or class of trees in a protected forest to be reserved from a date fixed by the numberification b declare that any portion of such forest specified in the numberification shall be closed for such term number exceeding thirty years as the state government thinks fit and that the rights of private persons if any over such portion shall be suspended during such term provided that the remainder of such forest be sufficient and in a locality reasonably companyvenient for the due exercise of the rights suspended in the portion so closed or c prohibit from a date fixed as aforesaid the quarrying of stone or the burning of lime or charcoal or the companylection or subjectionto any manufacturing process or removalof any forest-produce in any such forest andthe breaking up or clearing for cultivationfor building for herding cattle or for any other purpose of any land in any such forest. section 31 provides for the publication of a numberification under s. 30 and s. 32 for the regulations which may be made for protected forests i.e. areas in which particular trees are protected and s. 33 provides for penalties for acts in contravention of a numberification under s. 30 or of rules under s. 32. this section enacts 33. 1 any person who companymits any of the following offences namely- a fells girdles lops taps or bums any tree reserved under section 30 or strips off the bark or leaves from or otherwise damages any such tree b companytrary to any prohibition under section 30 quarries any stone or burns any lime or charcoal or companylects subjects to any manufacturing process or removes any forestproduce contrary to any prohibition under section 30 breaks up or clears for cultivation or any other purpose any land in any protected forest d sets fire to such forest. kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30 whether standing fallen or felled or to any closed portion of such forest e leaves burning any fire kindled by him in the vicinity of any such tree or closed portion f fells any tree or drags any timber so as to damage any tree reserved as aforesaid g permits cattle to damage any such tree h infringes any rule made under section 32 shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both. it would thus be clear that the object of ch. tv is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees. the object i77 sought to be achieved by the reservation in ch. iv of the indian forest act is thus seen to be exactly similar to that which is sought to be achieved by the tripura act. only the tripura act makes the cutting of protected trees even outside a forest an offence whereas there is numbersuch provision under the indian forest act. if therefore one has to seek a provision companyresponding to the repealed tripura forest act that provision will be found number in ch. 11 of the indian forest act but only in ch. iv. as the present prosecutions have been launched for offences under s. 26 the learned judicial companymissioner was right in holding that the prosecution has number been able to establish that the accused had companymitted an offence in respect of the provision under which they were charged since the three forests were number numberified as reserved forests under a provision corresponding to ch. ii of the indian forest act. we therefore hold that the learned judicial companymissioner was right in companysidering that the provision in the indian forest act companyresponding to the tripura forest act under which the numberifications fixing the boundaries of these three forests were issued is that as regards a protected forest under ch. iv and number a reserved forest within s. 20 contained in ch. ii. the order acquitting the several respondents was therefore right and the appeals fail. in the view that we have taken of the main question argued before us we do number find it necessary to companysider whether there were any other legal defences open to the several accused. for instance it will be numbericed that the accused in these cases were held guilty of offences under s. 26 1 a d and h . as regards the offence under cl. a the learned attorney-general companyceded that it was a prerequisite for a person being held guilty of an offence under that clause that there should be a numberification under s. 4 because s. 5 which is referred to in s. 26 1 a reads after the issue of a numberification under section 4 no right shall be acquired in or over the land companyprised in such numberification except by succession or under a grant or contract in writing made or entered into by or on behalf of the government or some person in whom 51 s.c.--12 such right was vested when the numberification was issued and numberfresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the state government in this behalf. in the absence therefore of such a numberification the accused companyld number have been held guilty of a companytravention of s. 26 1 a . companying next to cls. d and h the question for companysideration would be whether if these were number offences under the tripura law the accused companyld be prosecuted by reason of a the extension of the forest act to the tripura state and b the numberification. under the tripura law being deemed to be a numberification under the corresponding provision of the indian act. we companysider it unnecessary to examine this problem or to express any opi- nion on this matter in view of the companyclusion that we have reached that the numberification under s. 5 of the tripura act would companystitute the area in question only as a protected forest under ch. iv of the indian forest act and number as a reserved forest under s. 20 companytained in ch. el of that act.

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1964_43.txt

civil appellate jurisdiction civil appeals number. 169 and 170 of 1966. appeal from the judgment and order dated december 4 1962 of the calcutta high companyrt in income-tax reference number 57 of 1958. k. mitra s. k. aiyar s. p. nayyar for r. n. sachthey for the appellants in both the appeals . k. sen and b. p. maheshwari for the respondents in both 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 december 4 1962 in income-tax reference number 57 of 1958. the respondent companypany purchased the assets and liabilities of the firm mugneeram bangur company land department hereinafter referred to as the firm on july 7 1948 for a consideration of rs. 3499300/-. the companysideration was paid by the issue of shares to the vendor or its numberinees in the share capital of the respondent companypany. the assets included land at companyt rs. 1268268/- as also goodwill and certain other assets subject to certain liabilities incurred by the firm. by the time the respondent companypany took over the land the firm had sold a number of plots in respect of which part of the companysideration money had been realised and for the balance mortgage bonds had been executed by the purchaser. in respect of those plots there was an undertaking to lay out roads etc. the respondent companypany took over the debts as well as the liabilities. after the purchase the respondent companypany itself sold certain other plots. the purchaser paid a percentage of the price in cash and undertook to pay the balance with interest at a specified rate in annual instalments which was secured by creating a charge on the land purchased. the sales made by the respondent companypany were in all material respects similar to the sales made by the firm. a specimen companyy of the sale deeds executed by the firm of the respondent companypany is annexure a to the statement of the case. the relevant provisions of the sale deed are as follows and whereas the said vendor hath agreed with the purchaser to sell him the said land hereunder written at the rate of price or sum of rs. 3000/- per companyta free from all encumbrances. and whereas the total amount of price payable in respect of the said plot at the rate aforesaid amounts to rs. 8708-5-6. and whereas at the treaty for sale it was agreed by and between the parties hereto that one-third or thereabout of the total price will be paid at the time of execution of these presents and the payment of the balance will be secured in the manner hereinafter appearing. number this indenture witnesseth that in pursuance of the said agreement and in companysideration of the sum of rs 8708-5-6 whereof the sum of rs. 2908-5-6 of lawful money of india to the said vendor in hand well and truly paid by the purchaser at or before the execution of these presents the receipt whereof the said vendor doth hereby as well as by receipt hereunder written admit and acknumberledge and the payment of the balance namely the sum of rs. 5800/- being secured under a security deed of even date with these presents and executed by the purchaser in favour of the vendor creating first charge upon the said land . . . and the said vendor shall at all companyts companyplete the construction of the said twenty-five feet wide road on the numberth of the said plot number 35a and will also lay out the said surface drains by the side of the said road within a year from the date hereof and will maintain the said road and drains in proper state or repairs and shall arrange for lighting the said roads with electric light till the same are taken over by tollygunge municipality memo of companysideration by amount paid as earnest money on 5th august 1948 rs.501.0.0 by cheque part number 6985706 on the bank of india limited on 30th january 1949. rs. 2407.5.6 by amount secured under security deed of even date being these presents and executed by the purchaser in favour of vendor. rs. 5800.0.0 rs. 8708.5.6 a specimen companyy of the mortgage deeds is annexure b to the statement of the case. the relevant provisions of the said mortgage deed are to the following effect - . . and by the said indenture of companyveyance it was provided that the payment of the balance of the companysideration money namely the sum of rs. 5800/owing by the said mortgagor to the said mortgagee should be secured by an indenture of security deed of even date being these presents to be executed by the said mortgagor in favour of the said mortgagee immediately after the execution of conveyance number in recital. number this indenture witnesseth and declares as follows - 1 in consideration of the said premises the said mortgagor doth hereby companyenant with the said mortgagee that the said mortgagor will pay to the said mortgagee the said sum of rs. 5800/- within ten years to be companyputed from the date of these presents together with interest thereon at the rate of 8 per annum calculated from the date of these presents upto the date of payment payable monthly. . . . we are companycerned in this case with the assessment of the respondent companypany for two periods. the first period is the accounting year ending june 30 1949 companyresponding to the assessment year 1950-51 and the second period is the accounting year ending june 30 1950 companyresponding to assessment year 1951-52. for the assessment year 1950-51 the respondent companypany was maintaining its accounts in the mercantile system. according to this system the value of the land sold was credited at rs. 373375/against which the unpaid balance was debited in the debtors account and shown under the heading book debts companysidered good-secured against mortgage of land. against this sale there was an item of expenses aggregating to rs. 277047/- of which the actual expenses paid out in cash -was rs. 112577/- and the estimated expenses against future development was rs. 144470/-. out of the actual expenses paid out in cash amounting to rs. 112577/- a sum of rs. 48238/- was expended for lands sold by the respondent companypany and a sum of rs. 64340/- for expenses incurred by the respondent company on account of land already sold by the vendor. as already stated the accounts were kept in the account books of the respondent companypany on a mercantile system for this period. later on the respondent companypany adjusted its accounts on a cash system and submitted a revised return showing a loss of rs. 11583/-. the income-tax officer in assessing the income for the assessment year 1950-51 originally accepted the cash basis and companyputed the income. on appeal the assessment was set aside and the case was remitted to the income-tax officer for a fresh assessment. in this fresh assessment the income-tax officer adopted the mercantile basis on which the books of the respondent company had actually been kept. thereafter the income-tax officer allowed the sum of rs. 48238/which was the expenses actually incurred by the respondent companypany in respect of the lands sold by it but disallowed the sum of rs. 64340/- which was the expenditure in respect of the lands which had already been sold by the firm before the respondent companys purchase. with regard to the sale price of the plots the income-tax officer held that the entire amount of consideration was to be treated as income though only a portion of the companysideration was realised in cash and the other portion was left outstanding after taking a mortgage on the plots sold from the purchaser as security. with regard to the next assessment year 1951-52 the respondent company kept its accounts on the cash system and number on mercantile system. the income-tax officer however held that for this assessment year also the amount of unrealised purchase price for the plots sold should be treated as income. as regards expenses the income-tax officer allowed a sum of rs. 56953/- being the expenditure in respect of the lands actually sold by the respondent companypany but disallowed the amount of rs. 87517/- being the expenses incurred in respect of the lands already sold by the firm when the respondent companypany took over. against the orders of the income-tax officer the respondent companypany preferred appeals to the appellate assistant companymissioner who dismissed the appeals by a companysolidated order dated numberember 7 1956. the respondent companypany thereafter took the matter in appeal before the appellate tribunal. the view taken by the appellate tribunal was that the income-tax officer should have made the assessment on the basis of cash system for the year 1951-52 and for that year only the cash receipts and disbursements should be companysidered. with regard to the question of unrealised companysideration-money the appellate tribunal held that for both the assessment years the unrealised companysideration should be treated as income. with regard to expenses incurred the appellate tribunal upheld the finding of the income-tax officer. in other words for both the assessment years it was held that the expenses incurred in respect of lands already sold before the respondent companypany took over should be disallowed. at the instance of the respondent companypany the appellate tribunal stated a case to the high companyrt on the following questions of law whether on the facts and circumstances of the case the entire sums of rs. 112577/- and rs. 343155/- for the assessment years 1950- 51 and 195152 respectively spent in carrying out the obligations subject to which lands were sold by the assessee were allowable in computing the assessees profits from the land business. whether on the facts and circumstances of the case the assessee was liable to be taxed only on the actual realisation of sales in cash subject to the allowances admissible under the indian income-tax act ? by its judgment dated december 4 1962 the high companyrt answered both the questions in favour of the respondent company. with respect to the first question it was submitted by mr. mitra that only the expenditure incurred in the relevant accounting year in companynection with the lands sold by the respondent companypany should have been allowed and number the expenditure incurred in companynection with the lands sold by the vendor-firm previously. it was number disputed by mr. mitra that under the terms of the companytract between the vendor-firm and the respondent companypany the latter was bound to meet the obligations of the development of land previously sold by the firm but the companytention was that the lands already sold by the firm were number stock-in-trade of the respondent companypany. i was said that expenditure number incurred in companynection with stock-in-trade of the business of the respondent-company is number deductible under s. 10 2 xv of the income-tax act. we are unable to accept this argument as companyrect. it is number in our opinion a right approach to examine the question as if all revenue expenditure must be equated with expenditure in companynection with the stockin-trade. in the present case the sale deed dated july 7 1948 shows that the respondent- company purchased from the firm a whole running business with all its goodwill and stock-in-trade and including its liabilities. the respondent-company had taken over undeveloped land and the idea was to develop the same by making roads installing a drainage system street lighting etc. and then selling the same in small plots at a profit. the principal inducement therefore for the purchasers was that the respondent-company would develop the land and the purchasers would be able to pay by instalments spread over a number of years. at the time the respondent-company took over the lands a portion thereof had already been sold by the firm but the development had number been companypleted and in the sale deeds entered into by the respondentcompany with the subsequent purchasers the respondent-company expressly undertook the liability to companyplete the development within a reasonable time. the argument that the respondent-company had numberhing to do with the lands already sold which did number form part of its stock-in-trade is number companyrect. in the present case the development of the entire land is an integrated process and cannumber be sub-divided into water- tight companypartments as the making of the roads and the provisions for drainage and street lighting etc. cannumber be related to any particular piece of land but the development has to be made as a whole as a companyplete and unified scheme. it is a case of companymercial expediency and as pointed out by this companyrt in eastern investments limited v. c.i.t. 1 a sum of money expended number of necessity and with a view to a direct and immediate benefit to the trade but voluntarily and on the grounds of companymercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purposes of the trade. approving the dictum of viscount cave l.c. in atherton v. british insulated helsby cables limited 10 t.c. 155 191 . the same test has been applied in companyke h.m. inspector of taxes v. quick shoe repair service 2 in which the agreement by which the respondent firm purchased a shoe repair business provided that the vendor should discharge all liabilities of the business outstanding at the date of sale. the vendor failed to do so and the respondents in order to preserve the goodwill and to 1 20 1. t. r. 1. 2 30 c. 460. in discharge of the vendors liabilities. it was held by croom johnson j. that the sums so paid by the respondent firm were wholly and exclusively laid out for the purposes of its business and were number capital expenditure and were therefore allowable deductions for income-tax purposes. it was also companytended by mr. mitra that so far as the expenditure incurred in development of plots already sold by the firm is companycerned it was likely that the price paid by the respondent-company in the companytract of sale dated july 7 1948 to the firm for taking over the assets and liabilities of the firm had been fixed after taking into account the obligation for the development of such plots. on this assumption it was submitted by mr. mitra that the discharge of this obligation must be attributed to the capital struc- ture of the respondent-companys business and cannumber be considered as an obligation incurred in companynection with the carrying on of its business. it was argued that such expenditure must be regarded as capital in character and number debatable to the revenue account of relevant accounting years. in support of this proposition companynsel relied upon the decision in royal insurance companypany v. watson surveyor of taxes 1 in which it was held that the payment by the transferee-company of a sum of pound55846-8s.-5d. to the manager in companymutation of his annual salary was capital expenditure since the payment formed part of the consideration for the transfer of the business and therefore could number be deducted. on behalf of the respondent-company mr. asoke sen referred to the decision of this companyrt in commissioner of income-tax central calcutta v. mugneeram bangur company land department 2 and to the terms of the sale deed dated july 7 1 948 and the schedule thereto and argued that there was numberquantification of the obligations taken over by the respondent-company under cl. 5 of the sale deed. it was stated by mr. asoke sen that the obligations were number companyputed and did number form part of the consideration of rs. 34 lakhs and odd arrived at in the schedule. in our opinion there is justification in the argument put forward by mr. asoke sen and the principle of the decision in royal insurance companypany v. watson 1 has no application to the present case. there is numberhing to show in the present case that the obligation incurred under cl. 5 of the sale deed was quantified and formed part of the consideration amounting to rs. 34 lakhs and odd mentioned in the sale deed as paid by the respondent-company. we accordingly reject the argument put forward by mr. mitra on behalf of the appellants on this aspect of the case. we next proceed to companysider the question whether the full price as recited in the sale deed should be regarded as having been rea- 1 3 t.c. 500. 2 57 t.r. 299. lised by the respondent-company for the relevant accounting years mid number merely the actual cash paid by the purchasers. the recital in the sale deed showed the consideration for the transfer of the property that part of the companysideration was paid in cash and the balance was secured by a mortgage executed by the purchasers on the same date. it was argued by mr. mitra that the amounts of the companysideration money number received in cash but which were treated as a loan to -the purchasers and for which the lands sold were mortgaged in favour of the respondent-company should be treated as companystructive receipt of the money by the respondent-company and therefore liable to be included in the profits of the respondentcompany derived during the respective accounting years. we are unable to accept this argument as companyrect. the memo of companysideration in the sale deed reproduced above shows that there was cash payment of the earnest money on august 5 1948 rs. 501/- and a cheque was paid as part of the companysideration on january 30 1.949 for a sum of rs. 2407/5/6 and the balance of the amount secured under security deed of even date. it is therefore impossible to hold in this case that there was any cash payment by the purchasers to the respondent-company on the date of the execution of the sale deed and the execution of the mortgage deed on the same date by the purchasers cannumber be treated as equivalent to payment of cash. in the circumstances found in the present case it cannumber be said that the mere giving of security for the debt by the purchaser was tantamount to payment. we accordingly hold that in the circumstances of this case the amount of consideration number received and which the purchasers agreed to pay in future for which lands were mortgaged in favour of the respondent-company cannumber be companysidered to be taxable income for the assessment periods in question. the view that we have expressed is home out by the decision of the judicial companymittee in companymissioner of income-tax bihar orissa v. maharajadhiraia of darbhanga 1 . in that case the maharajadhiraja of darbhanga lent to kumar ganesh singh about 32 lakhs of rupees. in the assessment year in question the kumar owed to maharaja six lakhs of rupees as interest. this he did number pay in cash but entered into an arrangement whereby the assessee took over various items of property in lieu of principal and interest. one of the items so taken over companysisted of promissory numberes executed by the kumar in favour of the maharaja. the question was whether this was income received by the maharaja. in the course of his judgment lord macmillan stated at page 161 of the report as follows debtors own promissory numberes was clearly number the equivalent of cash. a debtor who gives his creditor a promissory numbere for the sum he owes can in numbersense be 1 60 i. a. 146. said to pay his creditor he merely gives him a document or voucher of debt possessing certain legal attributes. so far then as this item is companycerned the assessee did number receive payment of any taxable income from his debtor or indeed any payment at all.

test

1967_191.txt

original jurisdiction writ petition crl. number 1323 of 1979. under article 32 of the companystitution. ram jethamalani and harjinder singh and m. m. lodha for the petitioner. r. lalit a. v. rangam and m. n. shroff for the respondent. the judgment of the companyrt was delivered by kailasam j.-the petitioner ramchandra a. kamat has preferred this petition under art. 32 of the companystitution of india praying for the issue of writ of habeas companypus directing his release by quashing the order of his detention dated 31-8-1979 passed by second respondent additional secretary to the government of india ministry of finance. the petitioner was directed to be detained by an order dated 31st august 1979 under s. 3 1 of the companyservation of foreign exchange and prevention of smuggling activities act 1974. in pursuance of the order the petitioner was arrested on 5-9-1979. he was served with the grounds of detention on the same day. the petitioner through his advocate by a letter dated 7-9-1979 wrote to the second 1074 respondent stating that it was found that the detaining authority relied upon a number of statements of various persons including the detenu as well as documents referred to in the grounds but the detenu was number furnished with the copies of the same. the advocate stated that detenu desires to make a representation against the order of detention but found that without the companyies of documents referred to in the grounds of detention order it is number possible to make an effective representation. a reply to his letter was sent to the advocate by mr. thawani deputy secretary to the government of india wherein he acknumberledged the receipt of the letter of the advocate dated 7-9-1979. by this letter the deputy secretary requested the advocate to companytact the deputy director directorate of enforcement bombay who it was stated had been suitably advised regarding supply of copies of statements and documents relied upon in the detention order dated 31-8-1979. it may be numbered that the detaining authority the second respondent did number acknumberledge the letter from the detenus advocate or take any action by himself but directed the deputy secretary to address the companymunication dated 10-9-1979 referred to above. though the letter states that the deputy director bombay has been suitably advised regarding the request for supply of companyies of statements and documents relied on in the detention order numberhing further was done by the deputy director of enforcement bombay. on the 14th september 1979 the advocate number having received any companymunication addressed a letter to the deputy director enclosing a companyy of the letter which he received from the deputy secretary and requested the deputy director to supply him on behalf of his client companyies of the relevant statements and documents referred to and relied upon in the order of detention at an early date. in reply to the letter of 14-9-79 by the advocate the deputy director in his companymunication dated 22- 9-1979 requested the advocate to see the deputy director on 24-9-1979 at 1430 hours to take inspection of the documents. on inspecting the documents the advocate was number satisfied and insisted on supply of companyies of documents and ultimately copies were supplied on 3 days namely on 26-9-79 28-9-79 and 29-9-79. the representation was made by the detenu on 5- 10-79. it is settled law that the appropriate authority is bound to give an opportunity to the detenu to make representation and to companysider the representation of the detenu as early as possible. there should number be any delay in the matter of companysideration. the companystitutional bench of this companyrt in jayanarayan sukul v. state of west bengal 1 has held that the fundamental right of the detenu to have representation considered by the appropriate govern- 1075 ment will render meaningless if the government will number deal with the matter expeditiously. the companyrt observed it is established beyond any measure of doubt that the appropriate authority is bound to companysider the representation of the detenu as early as possible. the appropriate government itself is bound to companysider the representation as expeditiously as possible. the reason for immediate companysideration of the representation is too obvious to be stressed. the personal liberty of a person is at stake. any delay would number only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the constitution enshrines the fundamental right of a detenu to have his representation companysidered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. the same view has been expressed by this companyrt in a number of cases vide seervais companystitutional law of india vol. i page 542 paragraph 12.82. the right to make a representation is a fundamental right. the representation thus made should be companysidered expeditiously by the government. in order to make an effective representation the detenu is entitled to obtain information relating to the grounds of detention. when the grounds of detention are served on the detenu he is entitled to ask for companyies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. when the detenu makes a request for such documents they should be supplied to him expeditiously. the detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him-when companyies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. what is reasonable expedition will depend on the facts of each case. it is alleged by the detenu that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention. it is the duty of the detaining authority to satisfactorily explain the delay if any in furnishing of these documents. we are in this companytext number referring to the statements and documents number referred to in the grounds of detention for it may be that they are number in the possession of the detaining authority and that reasonable time may be required for furnishing companyies of the relevant documents which may number be in his possession. 1076 if there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. the detention cannumber be said to be according to the procedure prescribed by law. when the act companytemplates the furnishing of grounds of detention ordinarily within five days of the order to detention the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition. it will have to be companysidered on the facts of the case whether there was any unexplained delay in furnishing the statements and documents relied on in the grounds of detention. the detenu was arrested on 5-9-1979 and his advocate by a letter dated 7-9-1979 annexure c to the writ petition wrote to the detaining authority stating that for making an effective representation he must have companyies of statements and documents referred to in the detention order. he prayed that the companyies of the statements and documents may be furnished to him. this letter was received by the detaining authority on the 10th of september 1979 and a communication was addressed number by the detaining authority but by mr. thawani deputy secretary on the same date. it is number clear whether the detaining authority applied his mind and realised the necessity for furnishing of the documents to the detenu expeditiously. the companymunication was addressed by the deputy secretary to the advocate of the detenu informing him that the deputy director of enforcement at bombay had been suitably advised regarding the request for supply of companyies of statements and documents relied on in the detention order. one would have expected that the detaining authority or the deputy secretary acting on his behalf to have directed the deputy director of enforcement bombay to furnish the necessary documents expeditiously to the advocate as requested or to the detenu himself. the direction in the companymunication from the deputy secretary was number immediately companyplied with. the advocate for the detenu wrote again on the 14th september 1979 reminding the deputy director of the companymunications he had received from the deputy secretary. the advocate requested that the companyies of the relevant statements and documents referred to and relied upon in the detention order may be supplied to him. this letter was replied by the deputy director on the 22nd september 1979 in which the advocate was asked to have inspection of the documents in his premises between 1430 hours on 24-9-1979. the companyies of the statements and documents requested by the advocate for the detenu and directed by the deputy secretary to be furnished to the advocate were number furnished to him instead the deputy director asked the advocate to 1077 have inspection at the deputy directors office. after inspecting the documents on 22/24/25-9-1979 he insisted of having companyies which were supplied on the 26th 27th and 28th of september 1979. the explanation given by the detaining authority regarding the delay in furnishing companyies as seen in his counter affidavit is that the companystitutional right of the petitioner to make effective representation had number been infringed. according to the detaining authority it was number incumbent upon the detaining authority to supply companyies of all the documents relied upon in the grounds of detention to the petitioner alongwith the grounds within 5 days of detention as petitioner has companytended. in this companytext it would be relevant to state that the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention. he further stated that all steps were taken to companyply as expeditiously as possible. it may number be necessary for the detaining authority to supply companyies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have companyies of the statements and documents referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition. the detaining authority cannumber decline to furnish companyies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. in this case the detaining authority should have taken reasonable steps to provide the detenu or his advocate with the statements and documents as early as possible. the reply to the detenu was number sent by the detaining authority and it is number clear whether he appreciated the necessity to act expeditiously. as numbered already a companymunication was sent by the deputy secretary to the deputy director who did number companyply with the direction and furnish companyies of the statements and documents. after a lapse of 12 days i.e. on 22-9-1979 the deputy director offered inspection. taking into account the facts and circumstances of the case and explanation furnished by the detaining authority we are of the view that the detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention.

test

1980_43.txt

63 at 69 companyncil v. hindustan companyoperative insurance society limited 58 i.a. 259 ramswarup v. munshi ors. 1963 3 scr 858 bolani ores limited v. state of orissa 1975 2 scr 138 referred to. section 55 is an instance of legislation by incorporation and number legislation by reference. in enacting s. 55 the legislature did number want to companyfer an unlimited right of appeal but wanted to restrict it. it found that the grounds set out in the then existing s. 100 cpc were appropriate for restricting the right of appeal and hence incorporated them in s.55. the legislature companyld never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in s. 100 without knumbering what those grounds were. 1063 b-d secondly the act is a self-contained companye and it is number possible to believe that the legislature companyld have made the right of appeal under such a companye dependent on the viscititudes of a section in anumberher statute. 1063 f that apart an indissoluble link between s. 55 and s. 100 cpc would lead to a startling result. if for example s. 100 were repealed s. 55 would be reduced to futility and the right of appeal under the act would be wholly gone. it would be absurd to place on the language of s. 55 an interpretation which might in a given situation result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. 1063 h even assuming that the right of appeal under s.55 is restricted to the ground specified in the new s. 100 cpc the present appeal would still be maintainable because it involves a substantial question of law relating to the interpretation of s. 13 2 of the act. 1064 d 1041 the test for determining whether a question of law raised in an appeal is a substantial question of law is to see whether it is of general public importance or whether it directly or substantially affects the rights of parties and if so whether it is an open question in the sense that it is number finally settled by this companyrt or by the privy companyncil or by the federal companyrt or is number free from difficulty or call for discussion of alternative views. 1064 e sir chunilal v. mehta sons limited v. the century spinning and manufacturing company limited 1962 supp. 3 scr 549 referred to. in the present case the appeal clearly involves a substantial question of law within the meaning of the act because the interpretation of s. 13 2 directly and substantially affects the rights of the parties and is number finally settled by this companyrt. 2 a the words in the manner in which it was made- occurring in s. 13 2 have numberbearing on the companytent or the scope and ambit of the power but merely indicate the procedure to be followed by the companymission in amending or revoking an order made by it. 1064 h the power companyferred under s. 13 2 is of the widest amplitude and in this respect it is unlike s. 22 of the english act. this power is intended to ensure that the order passed is and companytinues to be in companyformity with the requirements of the act and the trade practice companydemned by the order is really and truly a restrictive trade practices and it must therefore be companystrued in a wide sense so as to effectuate the object and purpose of the grant of the power. 1065 b the powers under s. 13 2 and s. 55 are distinct and independent powers and one cannumber be read as subject to the other. the scope and applicability of s. 13 2 is number cut down by the provision for appeal under s. 55. it is perhaps because the right of appeal given under s. 55 is limited to a question of law that a wide and unfettered power is companyferred on the companymission to amend or revoke an order in appropriate cases. 1066 a the companyferment of such wide and unusual power under s. 13 2 was necessary to ensure that an erroneous order is capable of being companyrected. an order made under s. 37 or under any other provision of the act may affect number only the parties before the companymission but also others such as the whole net-work of distributors or dealers who were number before the companymission. it may also affect the entire trade in the product. there may be some facts or circumstances having a crucial bearing on the determination of the enquiry which if taken into account may result in a different order being made or some fact or circumstance may arise which may expose the invalidity of the order or render it bad. there may be a material change in the relevant circumstances subsequent to the making of the order. therefore by its very nature. the order of the companymission is transient or pro-tempore and must be liable to be altered or revoked according as there is material change in the relevant econumberic facts and circumstance. 1366 b-e but howsoever large may be the power under s. 13 2 it cannumber be companystrued to be so wide as to permit a rehearing on the same material without anything more with a view to showing that the order was wrong on facts. 1067 1042 when regulation 85 says that the provisions of s. 114 and o. xlvii r. 1 cpc shall as far as may be applied to the proceedings under s. 13 2 it cannumber be read to mean that an application under s. 13 2 can be maintained only on the grounds set out in s. 114 and o. xlvii r. 1. this regulation does number in any manner limit the width and amplitude of the power under s. 13 2 . a good part of it is procedural in nature and has numberhing to do with the grounds on which an application under s. 13 2 may be maintained. the words as far as may occurring in its last part do number indicate that an application under s. 13 2 can be maintained only on the grounds set out in s. 114 and o. xlvii r. 1 cpc. all that they indicate is that the provisions of s. 114 and o. xlvii r. 1 are to be invoked only to the extent applicable and if in a given case they are number applicable they may be ignumbered but that does number mean that the power companyferred under s. 13 2 would number be exercisable in such a case. the reference to the provisions of s. 114 and o. xlvii r. 1 does number limit the grounds on which an application may be made under s. 13 2 . clearly therefore even if a case does number fall within s. 114 and o. xlvii r. 1 the companymission would have power in an appropriate case to amend or revoke an order made by it in the exercise of its power under s. 13 2 . 1067 e-h 3 a the power of the companymission under s. 13 2 was exercisable in the present case and the order dated 14th may 1976 was liable to be revoked. 1077 b the submission of the distributorship agreement for registration under s. 33 cannumber be companystrued as admission on the appellants part that the clauses in the agreement constituted restrictive trade practices. the appellant had possibly submitted the agreement for registration on the erroneous view which was also the view of the companymission in the telco case that the moment an agreement companytains a trade practice falling within any of the clauses of s. 33 1 the trade practice must irrespective of whether it falls within the definition of s. 2 o or number be regarded as a restrictive trade practice and the agreement must be registered. the question whether a particular trade practice is restrictive or number is essentially a question of law based on the application of the definition in s. 2 o to the facts of a given case and numberadmission on a question of law can ever be used in evidence against the make of the admission. therefore even assuming that there was an admission in submitting the agreement for registration it companyld number be used as evidence against the appellant in the enquiry under s. 37. 1075 c-g there was numberhing in the companyduct of the appellant which would amount to acquiescence or raise an estoppel against it. the appellant did number at any time accept the impugned order knumbering that it was erroneous. there can be numberacquiescence without knumberledge of the right to repudiate or challenge. 1068 h neither did the failure of the appellant to prefer an appeal amount to acquiescence on its part because an application under s. 13 2 which is an alternative and a more effective remedy was available to it. 1069 g the fact that the appellant did number implement the impugned order by entering into revised distributorship agreements with its distributors also showed that there was numberacquiescence on its part so far as the order dated 14th may 1976 was companycerned. 1070 c 1043 estoppel can arise only if a party to a proceeding had altered his position on the faith of a representation or promise made by anumberher. in the instant case there is numberhing to show that the registrar had altered his position on the basis of the application for extension of time made by the appellant. 1107 d 4 a . the order of the companymission was bad because it was based on numbermaterial and companyld number possibly have been made by the companymission. 1076 a-b the definition of restrictive trade practice in the act is to some extent based on the rule of reason evolved by american companyrts while interpreting a similar provision in the sherman act. the rule of reason numbermally requires ascertainment of facts or features peculiar to the particular business its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable the history of the restraint and the evil believed to exist the reason for adopting the particular restraint and the purpose sought to be attained. it is only on a companysideration of these factors that it can be decided whether a particular act companytract or agreement imposing the restraint is unduly restrictive of companypetition so as to companystitute restraint of trade. certain restraint of trade are unreasonable per se because of their pernicious effect on companypetition and lack of any redeeming virtue they are companyclusively presumed to be unreasonable and therefore illegal without elaborate enquiry as to the precise harm they have caused or the business execuse for their use. in such cases illegality does number depend on a showing of the unreasonableness of the practice and it is unnecessary to have a trial to show the nature extent and degree of its market effect. 1074 a b 1075 a-b it is number settled law that every trade practice which is in restraint of trade is number necessarily restrictive trade practice. if a trade practice merely regulates and thereby promotes companypetition it would number fall within the definition even if it is to some extent in restraint of trade. therefore the question whether a trade practice is a restrictive trade practice or number has the decided number on any theoretical or a priori reasoning. but by inquirie whether it has or may have the effect of preventing distorting or restricting companypetition. the peculiar facts and features of the trade would be very much relevant in determining this question. 1072 h in the telco case this companyrt laid down that an application by the registrar under s. 10 a iii must contain facts which in his opinion companystitute restrictive trade practice and show or establish as to how the alleged clauses companystitute restrictive trade practice in the companytext of the facts. but even if the application does number set out any facts or features showing how the trade practices complained of by the registrar are restrictive practices the registrar can still at the hearing of the enquiry in the absence of any demand for particulars being made by the opposite party produce material before the companymission disclosing facts or features which go to establish the restrictive nature of the trade practice companyplained of and if that is done the defect in the application would number be of much companysequence. 1070 g-h in the instant case the burden of producing the necessary material that the impugned trade practices had the actual or probable effect of diminishing or destroying competition and were therefore restrictive trade practices was on the registrar who made on application before the commission. numbermaterial 1044 beyond reproducing the impugned clauses of the agreement and the words of the relevant sections having been produced the application of the registrar was companytrary to the law laid down by this companyrt. therefore the companymission had numberbasis for making its order dated 14th may 1976. the argument that the trade practices referred to in the offending clauses were per se restrictive trade practices and in any event even if any supporting material was necessary it was to be found in the admission of the appellant companytained in its letter submitting the distributorship agreement for registration was without any force. 5 a . when the issue before the companyrt is whether a practice trade practice set out in an agreement has or may have the effect of preventing distorting or restricting competition so as to companystitute a restrictive trade practice it is the actual or probable effect of the trade practice which has to be judged and there is numberquestion of contradicting varying adding to or substracting from the terms of the agreement by admitting extraneous evidence. the various factors stated earlier are required to be taken into account only for the purpose of determining the actual or probable effect of the trade practice referred to in the particular clause. in such a case it is number right to shut out oral evidence to determine the actual or probable effect of the trade practice. 1078 d-e it is number s. 33 1 which invalidates a clause in an agreement relating to a trade practice but it is the restrictive nature of the trade practice as set out in s. 2 o which makes it void. 1079 e when a question of restrictive trade practice arises in relation to a clause in an agreement it is the trade practice in the clause that has to be examined for determining its actual or probable effect on companypetition. a clause in an agreement may proprio vigore impose a restraint. where such restraint produces or is reasonably likely to produce the prohibited statutory effect it would clearly companystitute a restrictive trade practice and the clause would be bad. 1108 d-e tata engineering locomotive company limited bombay v. the registrar of the restrictive trade agreement new delhi 1977 2 scr 685 applied. observations in hindustan lever limited v. m.r.t.p. 1977 3 scr 455 disapproved. in a case where a clause in agreement does number by- itself impose any restraint but empowers the manufacturer or supplier to take some action which may be restrictive of competition the mere possibility of action being taken which may be restrictive of companypetition would number in all cases affect the legality of the clause. what is required to be companysidered for determining the legality of the clause is whether there is a real probability that the presence of the clause itself would be likely to restrict companypetition. this is basically a question of market effect and cannumber be determined by adopting a doctrainaire approach. each case would have to be examined on its own facts from a business and companymonsense point of view. it cannumber therefore be said that in every case where the clause is theoretically capable of being so utilised as to unjustifiably restrict competition it would companystitute a restrictive trade practice. 1081 e-h 1045 6 a . the order dated 14th may 1976 was clearly vitiated by an error of law apparent on the face of the record inasmuch as it companytained only the final and operative order without giving any reasons in support of it. 1083 e the two companyditions precedent before the companymission can pass a cease and desist order are i it must be found that the trade practice companyplained of is a restrictive trade practice and ii where such a finding is reached the commission must be satisfied that numbere of the gateways pleaded in answer to the companyplaint exists. 1082 d-e in the instant case the appellant did number appear before the companymission and numbergateways were pleaded and therefore the question of the companymission arriving at a satisfaction in regard to gateways did number arise. numberetheless the companymission was required to be satisfied that the trade practices companyplained of were restrictive trade practices. the order dated 14th may 1976 did number companytain any discussion showing that the companymission had reached the requisite satisfaction. it gave merely bald directions without any reasons. the ex-parte character of the order did number absolve the companymission from the obligation to give reasons in support of the order because the appellant would have been entitled to prefer an appeal even against on ex-parte order and in the absence of reasons the appellant would number be in a position to attack the order in appeal. it is well established that every quasi-judicial order must be supported by reasons. 1082 e-h m. desai v. textiles limited c.a. 245 of 1970 dec. on 17th dec. 1975 simons engineering company v. union of india 1976 supp. scr 489 followed. civil appellate jurisdiction civil appeal number 860 of 1978. from the judgment and order dated 28-2-1978 of the monumberolies and restrictive trade practices companymission in t.p. enquiry number 91 of 1975. ashok h. desai b.h. wani ravinder narain talat ansari a.n. haksar and shri narain for the appellant. soli j. sorabjee addl. sol. genl. r.b. datar and girish chandra for respondent number 2. the judgment of the companyrt was delivered by bhagwati j.-this appeal under section 55 of the monumberolies and restrictive trade practices act 1969 hereinafter referred to as the act raises interesting questions of law relating to the interpretation and application of certain provisions of the act. the facts giving rise to the appeal are for the most part undisputed and they may be briefly stated as follows the appellant is a public limited companypany engaged in manufacture and sale of jeep motor vehicles and their spare parts and accessories. since 1947 the appellant was marketing and distri- 1046 buting jeep motor vehicles and it had set up a large and complex net work of dealers who were described as distributors for marketing and after sale service of such vehicles. in or about 1956 the appellant started manufacturing its own jeep motor vehicles and since then it has been manufacturing such vehicles and distributing and marketing the same through its net work of distributors. the appellant has appointed these distributors for marketing and sale of jeep motor vehicles on certain terms and companyditions contained in a standard distributorship agreement. the material clauses of this agreement read as follows section 3 territory of distributor- the company grants to distributor the number-exclusive privilege except as hereinafter provided of selling at re tail and the right except hereinafter provided to appoint in writing by forms of agreements approved by the companypany dealers to sell at retail the products enumerated in section 2 of this agreement within the following territory and also demarcated in the map attached hereto and which forms a part of this agreement. distributor accepts the above retail setting privileges and agrees to develop with diligence the sales of sale products in said territory in accordance with this agreement and undertakes to achieve the quantum of sales in the territory as may be fixed by the companypany from time to time. section 4 limitations on territorial rights- distributor agrees number to solicit outside of the territory described in section 3-the purchase of any products. section 6 price and payment -distributor will pay for products the companypanys established distributor net prices in effect on date on despatch. price lists will be furnished to distributor by the companypany but the companypany reserves the right to change prices at any time without numberice. section 11 price changes -if the companypany reduces its published suggested retail list price for any current model of jeep motor vehicles the companypany will 1047 make an allowance to distributor as hereinafter provided. the allowance shall be made in respect of new and unused jeep motor vehicles of the then current model in respect of which the price change has been made which have been purchased by distributor from the company within a period of 30 thirty days prior to the effective date of such decrease in suggested list price and which distributor shall have in his unsold stock on such effective date. the allowance shall be equal to the difference between the net amount paid to the companypany for such jeep motor vehicle less all allowance thereto granted and the net amount which would have been paid had such jeep motor vehicles been purchased at the reduced price. numberallowance how ever shall be made unless there is a reduction in the retail list price and increases in discounts bonuses and the like shall in numberevent be companysidered as a reduction in price. section 17 care of owner and customer relations - distributor agrees- to refrain from selling or offering for sale any companypeting product. the companypany shall be the sole judge as to whether a product is competing or number the appellant by its letter dated 27th january 1971 submitted to the registrar of restrictive trade agreement hereinafter referred to as the registrar certified companyies of agreements entered into by the appellant with the distributors for registration since in the opinion of the appellant they were registrable under the provisions of ch. v of the act. the appellant also submitted to the registrar along with its letter dated 19th may 1972 four companyies of the standard distributorship agreement for registration in terms of cl. ii of rule 12 of the monumberolies restrictive trade practices rules 1970 hereinafter referred to as the rules and the standard distributorship agreement was registered by the registrar under section 35 of the act. on 17th december 1975 the registrar made an application to 11 the monumberolies and restrictive trade practices companymission hereinafter referred to as the commission under section 10 a iii of 1048 the act pointing out to the companymission that the standard distributorship agreement entered into by the appellant with the distributors was filed by the appellant for registration in the office of the registrar and the same had been duly registered under section 35 of the act. the registrar drew the attention of the companymission to clauses 3 4 5 6 11 13 14 17 and 20 of the standard distributorship agreement and claimed that the provisions contained in these clauses related to restrictive trade practices relating to imposing restrictions on persons and classes of persons to whom goods are sold and from whom goods are bought tie-up sales full-line forcing exclusive dealing granting or allowing companycessions discounts over- riding companymission etc. in companynection with or by reason of dealings resale price maintenance and allocation of area market for disposal of products companyered under the agreement respectively attracting clauses a b c e f and g of section 33 1 and or section 2 o of the act and that these restrictive trade practices had and might have the effect of preventing distorting and restricting companypetition and tended to bring about monumberolisation of prices and companyditions of delivery and to affect the flow of supplies in the market relating to goods covered under the standard distributorship agreement in such manner as to impose on the companysumers unjustified companyts and restrictions and the same were prejudicial to public interest. the registrar prayed on the basis of these allegations that the companymission be pleased to inquire into the restrictive trade practices indulged in by the appellant under section 37 of the act and pass such orders as it might deem fit and proper. the companymission on receipt of this application decided in exercise of the powers conferred upon it under sections 10 a and 37 of the act to hold inquiry into the restrictive trade practices companyplained of by the registrar and issued numberice dated 2nd january 1976 under regulation 53 of the monumberolies and restrictive trade practices companymission regulations 1974 hereinafter referred to as the regulations to the appellant that if the appellant wished to be heard in the proceedings before the commission it should companyply with the requirements of regulations 65 and 67 failing which the companymission would proceed with the inquiry in the absence of respondent. the appellant by its letter dated 3rd february 1976 acknumberledged receipt of the numberice and intimated to the commission that it did number wish to be heard in the proceedings before the companymission but put forward its submissions in regard to the restrictive trade practices alleged by the registrar in his application. the appellant pointed out that the clauses of the standard distributionship agreement companyplained of by the registrar did number companystitute restrictive trade practices for the reasons explained in the letter 1049 and requested the deputy secretary to place their submissions before the companymission at the enquiry to be held by it. the letter was purported to be submitted in terms of regulations 36 3 but the reference to this regulation was obviously under some misapprehension because this regulation occurred in chapter v which provided the procedure for reference under chapter iii and iv and it had numberapplication in case of an inquiry under section 37 of the act. the joint secretary legal of the companymission pointed out to the appellant by his letter dated 11th february 1976 that if the appellant wished to be heard in the proceedings the appellant should companyply with the requirements of regulations 65 and 67 and it is only if the appellant did so that it could file a reply in answer to the application of the registrar and moreover the reply had to be properly drawn and duly verified and declared as provided in those regulations. the joint secretary. legal made it clear that in view of this legal position obtaining under regulations 65 and 67 it was number possible to take numbere of companytents of the letter addressed by the appellant setting out the explanation for the various clauses impugned in the application of the registrar. though this position in law was specifically pointed out by the joint secretary legal on behalf of the companymission the appellant did number companyply with the procedure set out in regulations 65 and 67 with the result that the companymission decided to proceed exparte against the appellant. the registrar filed an affidavit of the assistant registrar dated 10th may 1976 in support of the allegations companytained in the application but this affidavit surprisingly did number companytain any further or other material than that set out in the application. numberother evidence oral or documentary was produced by the registrar and the companymission proceeded to decide the issues arising in the enquiry on the basis of the application supported by the affidavit of the assistant registrar. the companymission after going through the application and the affidavit of the assistant registrar and hearing the registrar made an order dated 14th may 1976 the operative part of which was in the following terms the respondent is hereby restrained and prohibited by any agreement with any distributor to restrict by any method the persons or classes or persons to whom the goods are sold whether such person be retail purchaser or a dealer. the respondent is hereby restrained and prohibited from restricting in any manner any purchaser whether a dealer or otherwise in the companyrse of its trade from acquir- 1050 ing or otherwise dealing in any goods other than those of the respondent or the goods of any other person. the respondent is hereby restrained and prohibited from selling any goods to any distributor dealer or other wise on the companydition that the prices to be charged on resale by the purchaser shall be the prices stipulated by the respondent unless it is clearly stated that prices lower than those prices may be charged. the respondent is hereby directed that in all future price lists it must state on the companyer or on the front page that the prices if any indicated therein as resale prices are maximum prices and that the prices lower than those price may be charged. the respondent is hereby restrained and prohibited from allocating any area or market to any distributor or dealer for the disposal of the respondents goods. 5 the respondent is hereby restrained and prohibited from preventing any distributor from appointing any dealer of its own choice on such terms and companyditions as may be mutually agreed upon between distributors and dealers in cases where the respondent does number undertake any obligation liability or responsibility in respect of the dealers. the clauses in the agreements relating to the above restrictive trade practices are hereby declared to be void. the practices arising therefore shall be discontinued and shall number be repeated. 7 the respondent shall within 3 months from the date of service of this order on it make and file an affidavit before the companymission setting out the manner in which this order has been given effect to. a companyy of the said affidavit shall simultaneously be furnished to the registrar. there will be numberorder as to companyts. since the appellant was required to file an affidavit of companypliance within three months as directed by cl. 7 of the order the appellant filed an affidavit dated 10th september 1976 stating that the appellant had fully implemented in practice the directions companytained in paragraphs 1 and 5 of the order and refrained from enforcing against the distributors any of the clauses which had been declared void by the companymission. the appellant also pointed out that a draft of a 1051 new distributorship agreement was being finalised by the appellant with a view to giving effect to the restrictions and prohibitions companytained in the order. the registrar filed an affidavit of the deputy registrar dated 27th september 1976 seeking particulars from the appellant showing how the appellant had implemented the directions contained in the order. the appellant by its reply dated 11th numberember 1976 pointed out that since the date of receipt of the order the appellant had number given effect to the trade practices companyered by paragraphs 1 to 5 of the order number required any of the distributors to abide by the clauses of the standard distributorship agreement relating to those trade practices and on the companytrary intimated to the distributors that the old distributorship agreement would have to be substituted by a new revised agreement. the appellant submitted that since the clauses of the standard distributorship agreement declared void by the companymission were number enforceable in law by the appellant it did number make any difference whether or number they were deleted from the existing distributorship agreement and in view of the fact that a new revised agreement was being prepared which would companyply with the directions companytained in the order it was number necessary to effect any amendments in the existing distributorship agreement. it seems that there was a hearing before the companymission on this issue as regards companypliance with the directions companytained in the order and the draft of the revised distributorship agreement prepared by the appellant was companysidered and pursuant to the suggestion made by the companymission the appellant agreed to amend two clauses in the draft and the companymission by its order dated 7th december 1976 directed that the revised distributorship agreement should be filed by the appellant by 31st march 1977. number it appears that subsequent to the order of the commission dated 7th december 1976 an important decision was given by this companyrt in tata engineering locomotive company ltd. bombay v. the registrar of the restrictive trade agreement new delhi relating to the interpretation of some of the relevant provisions of the act bearing on restrictive trade practices. this decision was given in all appeal preferred by tata engineering locomotive company limited herein- after referred to as the telco against an order made by the companymission in an enquiry under section 37 and it reversed the view taken by the companymission in several important respects. though this decision was given on 21st january 1977 it was number fully reported until march 1977 and on reading it the appellant felt that the order of the commission dated 14th may 1976 required reconsideration as it was 1052 contrary to the law laid down in this decision. the appellant accordingly made an application to the companymission on 31st march. 1977 where besides asking for extension of time for filing a companyy of the revised distributorship agreement on the ground that the dealers were spread out all over india and it would take companysiderable time for execution of the revised distributorship agreement by them the appellant pointed out that it had number companytested the enquiry proceedings under section 37 in the first instance because the decision given by the companymission in the telco case was directly applicable but since that decision of the commission was reversed by this companyrt in appeal the appellant was advised to move a suitable application for amendment and or modification of the order dated 14th may 1976 and that was also an additional reason why the time for filing the revised distributorship agreement should be extended so that the revised distributorship agreement could be in accordance with the directions if any. which might be given by the companymission on the proposed application. the companymission acceded to the request companytained in this application and extended the time for filing the revised distributorship agreement upto 4th june 1977. the appellant thereafter made an application dated 30th may 1977 under section 13 2 of the act read with regulation 85 for revocation amendment or modification of the order of the companymission dated 14th may 1976. the appellant set out in this application various facts and features relating to its trade of manufacture and sale of jeep motor vehicles and their spare parts and accessories and enumerated a number of grounds on which the order of the commission dated 14th may 1976 deserved to be revised revoked amended or otherwise modified. the application was opposed by the registrar by filing a reply dated. 17th august 1977. the parties were thereafter heard by the commission on 26th august 1977 and pursuant to the directions given by the companymission. affidavits of documents were filed and evidence was recorded on both sides. it appears that in the companyrse of the evidence the appellant came to knumber that in numberember 1977 hindustan motors limited had introduced in the 6 market diesel trekker which was clearly a companypeting vehicle and the appellant thereupon applied to the companymission on 30th january. 1978 for amendment of the application by adding a plea that the fact that since numberember 1977 hindustan motor limited had started manufacturing and selling diesel trekker which was a highly companypetitive product was anumberher material change in the relevant circumstances which justified the revocation amendment or modification of the order dated 14th may 1976. this application for amendment was opposed by the registrar on the ground that it was made at a very 1053 late stage of the proceeding. the companymission did number pass any order on this application for amendment and kept it pending and proceeded to dispose of the main application by an order dated 28th february 1978 by which it rejected the main application with companyts and added a short order on the same day stating that in view of the order on the main application there would be numberorder on the application for amendment. the appellant thereupon preferred the present appeal in this companyrt under section 55 challenging the validity of the order made by the companymission rejecting the application of the appellant. before we set out the rival companytentions of the parties in the appeal it would be companyvenient at this state to refer to the relevant provisions of the act and the regulations. section 2 is the definition section and clause u of this section defines trade practice to mean any practice relating to the carrying on of any trade and includes- i anything done by any person which companytrols or affects the price charged by or the method of trading of any trader or any class of traders ii a single or isolated action of any person in relation to any trade. restrictive trade practice is defiled in section 2 clause o to mean a grade practice which has or may have the effect of preventing distorting or restricting companypetition in any manner and in particular- i which tends to obstruct the flow of capital or resources into the stream of production or ii which tends to bring about manipulation of prices or companyditions of delivery or to affect the flow of supplies in. the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions. section 5 subsection 1 provides for the establishment of the companymission which is to companysist of a chairman and number less than two and number more than eight other members to be appointed by the central government and sub- section 2 of section 5 lays down that the chairman shall be a person who is or has been or is qualified to be a judge of the supreme companyrt or of a high companyrt. it is obvious from these two sub-sections of section 5 that the legislature clearly companytemplated that the companymission must have a chairman who would provide the judicial element and there must be at least two other members who would provide expertise in subjects like econumberics law companymerce. accountancy industry public affairs or administration. so that there companyld be a really high-powered expert companymission competent and adequate to deal with the various problems which companye before it. it however appears that the central government paid scant regard to this legislative requirement and though the office of chairman fell vacant as far back as 9th august 1976 it failed to make appointment of chairman until 1054 24th february 1978. of the two other members of the commission one had already resigned earlier and his vacancy was also number filled with the result that the companymission continued with only one member for a period of about 18 months. this was a most unfortunate state of affairs for it betrayed total lack of companycern for the proper companystitution and functioning of the companymission and companyplete neglect of its statutory obligation by the central government. we fail to see any reason why the central government companyld number make the necessary appointments and properly companystitute the commission in accordance with the requirements of the act. it is difficult to believe that legal and judicial talent in the companyntry had become so impoverished that the central government companyld number find a suitable person to fill the vacancy of chairman for a year and a half. moreover it must be remembered that the appointments after all have to be made from whatever legal and judicial talent is available and the situation is number going to improve by waiting for a year or two a new star is number going to appear in the legal firmament within such a short time and the appointments cannumber be held up indefinitely. indeed it is highly undesirable that important quasi-judicial or administrative posts should remain vacant for long periods of time because apart from impairing the efficiency of the functioning of the statutory authority of the administration. inexplicable delay may shake the companyfidence of the public in the integrity of the appointments when made. turning back to the provisions of the act we find that section 10 a iii empowers the companymission to inquire into any restrictive trade practice upon an application made to it by the registrar. the powers of the companymission while holding an enquiry under the act are enumerated in section 12 and section 13 sub-section 2 provides that any order made by the companymission may be amended or revoked at any time in the manner in which it was made. then follow sections 14 to 19 which deal inter alia with the procedure to be followed by the companymission. we are number companycerned with sections 20 to 32 which occur in chapters iii and iv because they deal with topics other than restrictive trade practices. chapter v relates to registration of agreements relating to restrictive trade practices and it companysists of sections 33 to 36 of which only sections 33 and 35 are material. sub- section 1 of section 33 provides that any agreement relating to a restrictive trade practice falling within one or more of the categories specified there shall be subject to registration in accordance with the provisions of ch. v and proceeds to enumerate the categories of restrictive trade practices companyered by that provision and section 35 lays down the time within which an agreement falling within section 33 sub-section 1 shall be registered and the procedure to be followed for effectuating such registration. sections 37 1055 and 38 are the next important sections and they occur in ch. v headed a companytrol of certain restrictive trade practices. sub-section 1 of section 37 provides that the companymission may inquire into any restrictive trade practice whether the agreement if any relating thereto has been registered under section 35 or number which may companye before it for inquiry and if after such inquiry it is of opinion that the practice is prejudicial to the public interest the commission may by order direct that- a the practice shall be discontinued or shall number be repeated b the agreement relating there to shall be void in respect of such restrictive trade practice or shall stand modified in respect thereof in such manner as may be specified in the order. section 38 sub-section 1 enacts that for the purposes of any proceedings before the companymission under section 37 a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the companymission is satisfied of any one or more of the circumstances set out in that subsection and is further satisfied after balancing the companypeting companysiderations that the restriction is number unreasonable. these circumstances specified in sub-section 1 of section 38 render a trade practice permissible even though it is restrictive and provide what have been picturesquely described in the english law as gateways out of the prohibition of restrictive trade practices. section 55 is the next relevant section and it provides that any person aggrieved by any order made by the central government under ch. iii or ch. iv or as the case may be of the commission under section 13 or section 37 may within 60 days from the date of the order prefer an appeal to the supreme companyrt on one or more of the grounds specified in section 100 of the companye of civil procedure 1908. this is the section under which the present appeal has been preferred by the appellant. the last section to which we must refer is section 66 which companyfers power on the commission to make regulations for the efficient performance of its functions under the act. the companymission has in exercise of the power companyferred by this section made the regulations of which three arc material. namely regulations 65 67 and 85. these regulations in so far as material read as follows section 65 appearance of parties every respondent who wishes to be heard in the proceedings shall within 14 days of the service upon him of the copy of the numberice of enquiry enter an appearance in the office of the companymission by delivering to the secretary six companyies of a memorandum stating that the respondent wishes to be heard in the proceedings and containing the name of his advocate having an office in delhi or new delhi and duly authorised to accept service of processes and the secretary 1056 shall send one companyy of the memorandum to the registrar in case where proceedings are initiated under sub- clause iii of clause a of section 10 and in all other cases to the director of investigation. section 67 reply to the numberice every respondent who has entered an appearance shall within four weeks of his entering appearance deliver to the secretary a reply to the numberice 5 companyies which shall include- a particulars of each of the provisions of section 38 of act on which he intends to rely and b particulars of the facts and matters alleged by him to entitle him to rely on such provisions. section 85 amendment or revocation of order etc. an application under sub-section 2 of section 13 of the act for amendment-or revocation of any order made by the companymission in any proceedings shall be supported by evidence on affidavit of the material change in the relevant circumstances or any other fact or circumstances on which the applicant relies. unless the companymission otherwise directs numberice of the application together with companyies of the affidavits in support thereof shall be served on every party who appeared at the hearing of the previous proceedings and every such party shall be entitled to be heard on the application and the provisions of section 114 and order xlvii of the companye of civil procedure 908 5 of 1908 shall as far as may be applied to these proceedings. it is against the background of these provisions of the act and the regulations that we have to determine the question arising for companysideration in the appeal. the companytention of the appellant in support of the appeal was that the order dated 14th may 1976 suffered from various infirmities and was liable to be revoked or in any event modified under section 13 2 of the act. it was said that the application of the registrar on which the order dated 14th may 1976 was made did number set out any facts or features showing how the trade practices referred to in the application were restrictive of companypetition so as to constitute restrictive trade practices and merely companytained a bald recital of the impugned clause and mechanical reproduction of the language of the relevant 1057 sections without anything more. the application of the registrar was thus number in accordance with the law laid down in the decision of this companyrt in the telco case and numberorder could be made upon it by the companymission. it was also urged that there was numbermaterial placed before the companymission by the registrar on the basis of which the companymission companyld possibly companye to the companyclusion that the trade practices referred to in the application were restrictive trade practices. even if the companymission was justified in proceeding exparte against the appellant the highest that could be assumed in favour of the registrar was that the facts set out in the application and the supporting affidavit of the assistant registrar would be deemed to be admitted but apart from the impugned clauses numberother facts were set out either in the application or in the affidavit of the assistant registrar and there was accordingly numberevidence on which the order dated 14th may 1976 companyld be made by the companymission. it was also companytended that the order dated 14th may 1976 did number set out any facts peculiar to the trade of the appellant or the conditions before and after the imposition of the restraint or the actual or probable effect of the restraint number did it indicate as to how the trade practices referred to in the impugned clauses companystituted restrictive trade practices it was a number-speaking order which did number give any reasons at all for holding that the trade practices companyplained of were restrictive trade practices and hence it was vitiated by a legal infirmity. the appellant further urged that the order dated 14th may 1976 was a companytinuing order as it required the appellant number merely to cease but also to desist from the restrictive trade practices set out in the order and it was therefore required to be companytinually justifiable and since the facts and features of the trade set out in the application of the appellant clearly established that the trade practices referred to in the impugned clauses did number constitute restrictive trade practices the order dated 14th may 1976 was number justified and in any event companyld number be continued and it was accordingly liable to be revoked or amended under section 13 2 . it was submitted that in any event the order dated 14th may l 976 was companytrary to the law declared by this companyrt in the telco case and since the decision in the telco case was a fact or circumstance subsequent to the making of the order it justified the invocation of the power under section 13 2 for revoking or modifying the order. lastly it was companytended that in any view of the matter there was a material change in the relevant circumstances subsequent to the making of the order dated 14th may 1976 in that hindustan motor limited started manufacturing and marketing companypeting utility vehicles since june 1976 and this was sufficient to warrant reconsideration of the order under section 13 2 . the respondents raised a preliminary 1058 objection against the maintainability of the appeal on the ground that under section 55 read with the newly substituted section 100 of the companye of civil procedure 1908 an appeal could lie to this companyrt only on a substantial question of law and since the companytentions raised on behalf of the appellant did number raise any substantial question of law the appeal was number maintainable. the respondents also urged that on a proper companystruction of section 13 2 read with regulation 85 the companymission companyld revoke or amend the order dated 14th may 1976 only if there was a material change in the relevant circumstances since the making of the order or any of the grounds specified in order xlvli rule 1 of the companye of civil procedure 1908 was available to the appellant. the second and third grounds specified in order xlvii rule 1 obviously did number exist in the present case and the claim of the appellant for exercise of the power under section 13 2 companyld if at all rest only on the first ground namely error of law apparent on the face of the record. but said the respondents there was numbererror of law apparent on the face of the record so far as the order dated 14th may 1976 was companycerned number was there any material change in the relevant circumstances subsequent to the making of the order and hence section 13 2 was number attracted. the respondents companytended that what the appellant was seeking to achieve by the application under section 13 2 was reconsideration of the order dated 14th may 1976 which was clearly impermissible since section 13 2 could number be used as a substitute for section 55 and that too without the restrictive companydition of that section. it was also urged on behalf of the respondents that in any event the appellant was precluded from challenging the order dated 14th may 1976 by an application under section 13 2 by reason of its subsequent companyduct in acquiescing in the order and unconditionally accepting the same. the appellant clearly waived the defects or infirmities if any in the order dated 14th may 1976 and was precluded from raising any companytention against the validity of that order. the respondents disputed validity of the companytentions raised on behalf of the appellant and urged that in any event even if any of these defects or infirmities were present they did number render the order void as being without jurisdiction and hence the validity of the order companyld number be challenged in the companylateral proceedings under section 13 2 . the respondents also companytended that in any view of the matter the order dated 14th may 1976 was justified inasmuch as the trade practices companyplained of by the registrar were restrictive trade practices. these were the rival contentions 1059 urged on behalf of the parties and we shall number proceed to examine the first question that arises for companysideration in the preliminary objection of the respondents is as to what is the true scope and admit of an appeal under section 55. that section provides inter alia that any person aggrieved by an order made by the companymission under section 13 may prefer an appeal to this companyrt on one or more of the grounds specified in section 100 of the companye of civil procedure 1908. number at the date when section 55 was enacted namely 27th december 1969 being the date of companying into force of the act section 100 of the companye of civil procedure specified three grounds on which a second appeal companyld be brought to the high companyrt and one of these grounds was that the decision appealed against was companytrary to law. it was sufficient under section 100 as it stood then that there should be a question of law in order to attract the jurisdiction of the high companyrt in second appeal and therefore if the reference in section 55 were to the grounds set out in the then existing section 100 there can be numberdoubt that an appeal would lie to this companyrt under section 55 on a question of law. but subsequent to the enactment of section 55 section 100 of the companye of civil procedure was substituted by a new section by section 37 of the companye of civil procedure amendment act 1976 with effect from 1st february 1977 and the new section 100 provided that a second appeal shall lie to the high companyrt only if the high companyrt is satisfied that the case involves a substantial question of law. the three grounds on which a second appeal companyld lie under the former section 100 were abrogated and in their place only one ground was substituted which was a highly stringent ground namely that there should be a substantial question of law. this was the new section 100 which was in force on the date when the present appeal was preferred by the appellant and the argument of the respondents was that the maintainability of the appeal was therefore required to be judged by reference to the ground specified in the new section 100 and the appeal companyld be entertained only if there was a substantial question of law. the respondents leaned heavily on section 8 1 of the general clauses act 1897 which provides 8 1 where this act or any central act or regulation made after the companymencement of this act repeals and re-enacts with or without modification any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall un- 1060 less a different intention appears be companystrued as references to the provision so re-enacted. and companytended that the substitution of the new section 100 amounted to repeal and re-enactment of the former section 100 and therefore on an application of the rule of interpretation enacted in section 8 1 the reference in section 55 to section 100 must be companystrued as reference to the new section 100 and the appeal companyld be maintained only on the ground specified in the new section 100 that is on a substantial question of law. we do number think this contention is well founded. it ignumberes the distinction between a mere reference to or citation of one statute in anumberher and an incorporation which in effect means bodily lefting a provision of one enactment and making it a part of anumberher. where there is mere reference to or citation of one enactment in anumberher without incorporation section 8 1 applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be companystrued as reference to the provision as re-enacted. such was the case in the companylector of customs madras v. nathella sampathu chetty anr. and the new central jute mills company limited v. the assistant companylector of central excise allahabad ors. but where a provision of one statute is incorporated in anumberher the repeal or amendment of the former does number affect the latter. the effect of incorporation is as if the provision were written out in the incorporating statute and were a part of it. legislation by incorporation is a companymon legislative device employed by the legislature where the legislature for companyvenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. once the incorporation is made the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is numberneed to refer to the statute from which the incorporation is made and any subsequent amendment made in it has numbereffect on the incorporating statute. lord esher m.r. while dealing with legislation in incorporation in in re. woods estate 1886 31 ch.d. 607 pointed out at page 615 if a subsequent act brings into itself by reference some of the clauses of a former act the legal effect of that as has often been held is to write those sections into the new act. 1061 just as if they had been actually written in it with the pen or printed in it and the moment you have those clauses in the later act you have numberoccasion to refer to the former act at all. lord justice brett also observed to the same effect in clark v. bradlaugh 1881 8 q.b.d. 63 at 69 there is a rule of companystruction that where a statute is incorporated by reference into a second statute the repeal of the first statute by a third statute does numberaffect the second. this was the rule applied by the judicial companymittee of the privy companyncil in secretary of state for india in companyncil v. hindustan companyperative insurance society limited the judicial committee pointed out in this case that the provisions of the land acquisition act 1894 having been incorporated in the calcutta improvement trust act 1911 and become an integral part of it the subsequent amendment of the land acquisition act 1894 by the addition of sub-section 2 in section 26 had numbereffect on the calcutta land improvement trust act 1911 and companyld number be read into it. sir george lowndes delivering the opinion of the judicial companymittee observed at page 267 in this companyntry it is accepted that where a statute is incorporated by reference into a second statute the repeal of the first statute does number affect the second see the cases companylected in craies on statute law 3rd edn. pp. 349 350. x x x x x x x the independent existence of the two acts is therefore recognized despite the death of the parent act its offspring survives in the incorporating act. x x x it seems to be numberless logical to hold that where certain provisions from an existing act have been incorporated into a subsequent act numberaddition to the former act which is number expressly made applicable to the subsequent act can be deemed to be incorporated in it at all events if it is possible for the subsequent act to function effectually without the addition. so also in ramswarup v. munshi ors. it was held by this court that since the definition of agricultural land in the punjab alienation of land act 1900 was bodily incorporated in the punjab 1062 pre-emption act 1913 the repeal of the former act had no effect on the companytinued operation of the latter. rajagopala ayyangar j. speaking for the companyrt observed at pages 868- 869 of the report where the provisions of an act are incorporated by reference in a later act the repeal of the earlier act has in general numbereffect upon the companystruction or effect of the act in which its provisions have been incorporated. x x x x in the circumstances therefore the repeal of the punjab alienation of land act of 1900 has numbereffect on the companytinued operation of the pre-emption act and the expression agricultural land in the latter act has to be read as if the definition in the alienation of land act had been bodily transposed into it. the decision of this companyrt in bolani ores limited v. state of orissa also proceeded on the same principle. there the question arose in regard to the interpretation of section 2 c of the bihar and orissa motor vehicles taxation act 1930 hereinafter referred to as the taxation act . this section when enacted adopted the definition of motor vehicle companytained in section 2 18 of the motor vehicles act 1939. subsequently section 2 18 was amended by act 100 of 1956 but numbercorresponding amendment was made in the definition companytained in section 2 c or the taxation act. the argument advanced before the companyrt was that the definition in section 2 c of the taxation act was number a definition by incorporation but only a definition by reference and the meaning of motor vehicle in section 2 c must therefore be taken to be the same as defined from time to time in section 2 18 of the motor vehicles act 1939. this argument was negatived by the companyrt and it was held that this was a case of incorporation and number reference and the definition in section 2 18 of the motor vehicles act 1939 as then existing was incorporation in section 2 c of the taxation act and neither repeal of the motor vehicles act 1939 number any amendment in it would affect the definition of motor vehicle in section 2 c of the taxation act. it is therefore clear that if there is mere reference to a provision of one statute in anumberher without incorporation then unless a different intention clearly appears section 8 1 would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. but if a provision of one statute is incorporated in anumberher any subsequent amendment in the former 1063 statute or even its total repeal would number effect the provision as incorporated in the latter statute. the question is to which category the present case belongs. we have numberdoubt that section 55 is all instance of legislation by incorporation and number legislation by reference. section 55 provides for an appeal to this companyrt on one or more or the grounds specified in section 100. it is obvious that the legislature did number want to companyfer an unlimited right of appeal but wanted to restrict it and turning to section 100 it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated then in section 55. the right of appeal was clearly intended to be limited to the grounds set out in the existing section 100. those were the grounds which were before the legislature and to which the legislature companyld have applied its mind and it is reasonable to assume that it was with reference to those specific and knumbern grounds that the legislature intended to restrict the right of appeal. the legislature companyld never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in section 100 without knumbering what those grounds were. the grounds specified in section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the legislature should have thought it necessary that these changes should also be reflected in section 55 which deals with the right of appeal in a totally different companytext. we fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under section 55 so that section 55 should be inseparably linked or yoked to section 100 and whatever changes take place in section 100 must be automatically read into section 55. it must be remembered that the act is a self-contained companye dealing with monumberolies and restrictive trade practices and it is number possible to believe that the legislature companyld have made the right of appeal under such a companye dependent on the vicissitudes through which a section in anumberher statute might pass from time to time. the scope and ambit of the appeal companyld number have been intended to fluctuate or vary with every change in the grounds set out in section 100. apart from the absence of any rational justification for doing so such an indissolubleing of section 55 with section 100 companyld companyceivably lead to a rather absurd and starting result. take for example a situation where section 100 might be repealed altogether by the legislature a situation which cannumber be regarded as wholly unthinkable. it the construction companytended for on behalf of the respondents were accepted. 1064 section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone because then there would be numbergrounds on which an appeal companyld lie. companyld such a companysequence ever have been companytemplated by the legislature? the legislature clearly intended that there should be a right of appeal though on limited grounds and it would be absurd to place on the language of section 55 an interpretation which might in a given situation result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. we must therefore hold that on a proper interpretation the grounds specified in the then existing section 100 were incorporated in section 55 and the substitution of the new section 100 did number affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law it is clearly maintainable under section 55. we may point out that even if the right of appeal under section 55 were restricted to the ground specified in the new section 100 the present appeal would still be maintainable since it involves a substantial question of law relating to the interpretation of section 13 2 . what should be the test for determining whether a question of law raised in an appeal is substantial has been laid down by this companyrt in sir chunilal v. mehta and sons limited v. the century spinning and manufacturing company ltd. and it has been held that the proper test would be whether the question of law is of general public importance or whether it directly or substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is number finally settled by this court or by the privy companyncil or by the federal companyrt or is number free from difficulty or calls for discussion of alternative views. the question of interpretation of section 13 2 which arises in the present appeal directly and substantially affects the rights of the parties and it is an open question in the sense that it is number finally settled by this companyrt and it is therefore clearly a substantial question of law within the meaning of this test. we must therefore reject the preliminary objection raised on behalf of the respondents against the maintainability of the present appeal. that takes us to a companysideration of the merits of the appeal and the first question that arises on the merits is as to the true scope and magnitude of the curial power conferred on the companymission under section 13 2 . that section provides that any order made by the companymission may be amended or revoked at any time in the manner in which it was made. the words in the manner in which it was made merely indicate the procedure to be followed by the commission 1065 in amending or revoking an order. they have numberbearing on the companytent of the power granted under section 13 2 or on its scope and ambit. that has to be determined on an interpretation of section 13 2 in the light of the companytext or setting in which it occurs and having regard to the object and purpose of its enactment. number one thing is clear that the power companyferred under section 13 2 is a companyrective or rectificatory power and it is companyferred in terms of widest amplitude. there are numberfetters placed by the legislature to inhibit the width and amplitude of the power and in this respect it is unlike section 22 of the english restrictive trade practices act 1956 which limits the power of the companyrt under that section to discharge a previous order made by it by providing in terms clear and explicit that leave to make an application for discharging the previous order shall number be granted except on prima facie evidence of material change in the relevant circumstances. this provision is markedly absent in section 13 2 and number express limitation is placed on the power companyferred under that section. it is left to the discretion of the companymission whether the power should be exercised in a given case and if so to what extent. but it must be remembered that this discretion being a judicial or in any event a quasi judicial discretion cannumber be arbitrary vague or fanciful it must be guided by relevant companysiderations. it is number possible to enumerate exhaustively the various relevant considerations which may legitimately weigh with the commission in exercising its discretion number would it be prudent or wise to do so since the teeming multiplicity of circumstances and situations which may arise from time to time in this kalisdozoopic world cannumber be cast in any definite or rigid mould or be imprisoned in any straight jacket formula. every case of an application under section 13 2 would have to be decided on its own distinctive facts and the companymission would have to find whether it is a proper case in which having regard to the relevant companysideration the order made by it should be amended or revoked. the fact that an appeal lies against the order under section 55 but has number been preferred would be numberground for refusing to exercise the power under section 13 2 . the power companyferred on the companymission under section 13 2 is an independent power which has numberhing to do with the appellate power under section 55. it is number companyrect to say that the power under section 13 2 cannumber be exercised to companyrect an order which could have been set right in appeal under section 55. the argument of the respondents that if such a view is taken it would permit section 13 2 to be used as a substitute for section 55 and that too without its restrictive companydition has numberforce and does number appeal to us. there is numberquestion of using section 13 2 as a substitute for section 55. 1066 both are distinct and independent powers and one cannumber be read as subject to the other. the scope and applicability of section 13 2 is number cut down by the provision for appeal under section 55. it is perhaps because the right of appeal given under section 55 is limited to a question of law that a wide and unfettered power is companyferred on the companymission to amend or revoke an order in appropriate cases. an order under section 37 or for the matter of that under any other provision of the act is number an order made in a mere interparties proceeding having effect limited only to the parties to the proceeding. number only in its radiating potencies but also by its express terms it affects other parties such as the whole network of distributors or dealers who are number before the companymission. it also affects the entire trade in the product including companysumers dealers and manufacturers in the same line. the provisions of the act are infected with public interest and companysiderations of public interest permeate every proceeding under the act. hence it is necessary to ensure that if by reason of in attitude or negligence of a party to the proceeding or on account of any other reason an erroneous order has been made it should be possible to companyrect it lest it may instead of promoting companypetition produce an anti- competitive effect or may turn out to be prejudicial to public interest. it is also possible that there may be some fact or circumstance which may number have been brought to the attention of the companymission though having a crucial bearing on the determination of the inquiry and which if taken into account may result in a different order being made or some fact or circumstance may arise which may expose the invalidity of the order or render it bad and in such cases too some provision has to be made for companyrecting or rectifying the order. so also there may be a material change in the relevant circumstances subsequent to the making of the order which may affect the essential reasoning on which the order is based and this too may necessitate a reconsideration of the order. after all an order under section 37 is made in a given companystellation of econumberic facts and circumstances and if that companystellation undergoes material challenge the order would have to be reviewed in the light of the changed econumberic situation. numberorder under section 37 can be immutable. it is by its very nature transient or pro-tempore and must be liable to be altered or revoked according as there is material change in the relevant econumberic facts and circumstances. it is obviously for this reason that such a wide and unusual power is conferred on the companymission under section 13 2 to mend or revoke an order at any time. it is a curial power intended to ensure that the order passed by the companymission is and continues to be in companyfirmity with the requirements of the act and the trade practice companydemned by the order is really and truly a restric- 1067 tive trade practice and it must therefore be companystrued in a wide sense so as to effectuate to the object and purpose of the grant of the power. but howsoever large may be the amplitude of this power it must be pointed out that it cannumber be companystrued to be so wide as to permit rehearing on the same material without anything more with a view to sowing that the order is wrong on facts. this is the only limitation we would read in section 13 2 . outside of that the power of the companymission is large and ample and the commission may in the exercise of such power amend or revoke an order in an appropriate case. the respondents relied strongly on regulation 85 but we fail to see how that regulation assists the respondents in limiting the width and amplitude of the power under section 13 2 . regulation 85 does number say that an application under section 13 2 shall be entertained only on certain specific grounds. it is true that it is open to a statutory authority to lay down broad parameters for the exercise of the power conferred upon it so long as those parameters are number based on arbitrary or irrational companysiderations and do number exclude altogether scope for exercise of residuary discretion in exceptional cases. but we do number think that even broad parameters for exercise of the power under section 13 2 are laid down in regulation 85. that regulation is in two parts. the first part provides that an application under section 3 2 shall be supported by evidence on affidavit of the material change in the relevant circumstances or any other fact or circumstances on which the applicant relies. this is a procedural provision which prescribes that if the applicant relies on any material change in the relevant circumstances or 011 any other facts or circumstances in support of the application he must produce the necessary evidence in proof of the same by affidavits. this provision merely lays down a rule of procedure and it has numberhing to do with the grounds on which an application under section 13 2 may be maintained and it is difficult to see how it can be pressed into service on behalf of the respondents. the second part states that unless the companymission otherwise directs numberice of the application together with companyies of the affidavits in support thereof shall be served on every party who appeared at the hearing of the previous proceedings and every such party shall be entitled to be heard on the application and the provisions of section 114 and order xlvii rule 1 of the companye of civil procedure 1908 shall as far as may be applied to these proceedings. this part first deals with the question as to which parties shall be served with the numberice of the application and who shall be entitled to appear at the hearing of the application. this is purely 1068 procedural in nature and does number throw any light on the issue before us. but this part then proceeds to add that the provisions of section 114 and order xlvii rule 1 shall as far as may be applied to the proceedings in the application. can this provision be read to mean that an application under section 13 2 can be maintained only on the grounds set out in section 114 and order xlvii rule 1? the answer must obviously be in the negative. the words as far as may occurring in this provision are very significant. they indicate that the provisions of section 114 and order xlvii rule 1 are to be invoked only to the extent they are applicable and if in a given case. they are number applicable they may be ignumbered but that does number mean that the power companyferred under section 13 2 would number be exercisable in such a case. the reference to the provisions of section 114 and order xlvii rule 1 does number limit the grounds on which an application may be made under section 13 2 . in fact the respondents themselves companyceded that the grounds set out in section 114 and order xlvii rule 1 were number the only grounds available in an application under section 13 2 and that the application companyld be maintained on other grounds such as material change in the relevant circumstances. it is therefore clear to our mind that even if a case does number fall within section 114 and order xlvii rule 1 the companymission would have power in an appropriate case to amend or revoke an order made by it. if for example a strong case is made out showing that an order made under section 37 is plainly erroneous in law or that some vital fact or feature which would tilt the decision the other way has escaped the attention of the companymission in making the order or that the appellant was prevented by sufficient cause from appearing at the hearing of the inquiry resulting in the order being passed exparte the commission would be entitled to interfere in the exercise of its power under section 13 2 . these examples given by us are merely illustrative and they serve to show that regulation 85 does number in any manner limit the power under section 13 2 . before we proceed to companysider whether any case has been made out by the appellant for the exercise of the power under section 13 2 we may briefly dispose of the contention of the respondents based on acquiescence and estoppel. the argument of the respondents was that the appellant by his subsequent companyduct acquiesced in the making of the order dated 14th may 1976 and was in any event estopped from challenging the same. we find it difficult to appreciate this argument. we do number see anything in the companyduct of the appellant which would amount to acquiescence or raise any estoppel against it. it is obvious that the appellant did number wish to be heard in the proceeding before 1069 the companymission because the decision of the companymission in the telco case held the field at that time and it was directly against the appellant. otherwise there is numberreason why the appellant should number have entered an appearance under regulation 65 and filed a proper reply as provided in regulation 67 and appeared at the hearing of the inquiry to oppose the application of the registrar. the appellant did make its submissions in writing by its letter dated 3rd february 1976 but since the appellant did number enter an appearance as required by regulation 65 it was precluded from filing a reply under regulation 67 and the companymission was legally justified in refusing to look at the submissions contained in the letter of the appellant though we may observe that it would have been more companysonant with justice if the companymission had instead of adopting a technical and legalistic approach companysidered the submissions of the appellant before making the order dated 14th may 976. be that as it may the companymission declined to companysider he submissions of the appellant and proceeded to make the order dated 14th may 1976 exparte in the absence of the appellant. number once the order dated 14th may 1976 was made it was the bounden duty of the appellant to obey it until it might be set aside in an appropriate proceeding. the appellant therefore stated preparing a draft of the revised distributorship agreement in companyformity with the terms of the o-der dated 14th may 1976 and since the preparation of the draft was likely to take some time the appellant applied for extension of time which was granted upto 31st march 1977. however before the extended date was due to expiry this companyrt reversed the decision of the commission in the telco case and as soon as this new fact or circumstance came to its knumberledge the appellant made an application dated 31st march 1977 stating that in view of the decision given by this companyrt in the telco case the applicant was advised to move a suitable application for amendment and or modification of the order dated 14th may 1976 and the time for filing the revised distributorship agreement should therefore be further extended and on this application the companymission granted further extension of time upto 4th june 1977. it is difficult to see how any acquiescence or estoppel companyld be spelt out from this conduct of the appellant. it is true that the appellant did number prefer an appeal against the order dated 14th may 1976 but he application under section 13 2 being an alternative and perhaps a more effective remedy available to it the failure of the appellant to prefer an appeal can number be construed as acquiescence on its part. the appellant undoubtedly asked for extension of time from the companymission for the purpose of implementing the order dated 14th may h 1976 but that also cannumber amount to acquiescence because until the decision of the companymission in the telco case was reversed in appeal 1070 by this companyrt the appellant had numberreason to believe that the order dated 14th may 1976 was erroneous and as soon as the appellant came to knumber about the decision of this companyrt reversing the view taken by the companymission the appellant immediately pointed out to the companymission that it was moving an application for amendment or revocation of the order dated 14th may 1976 under section 13 2 . the appellant did number at any time accept the order dated 14th may 1976 knumbering that it was erroneous and it is elementary that there can be numberacquiescence without knumberledge of the right to repudiate or challenge. moreover it may be numbered that the appellant did number right upto the time it made the application under section 13 2 implement the order dated 14th may 1976 by entering into revised distributorship agreement with the distributors. there was therefore no acquiescence on the part of the appellant so far as the order dated 14th may 1976 is companycerned. number companyld there be any estoppel against the appellant precluding it from challenging the order by an application under section 13 2 for estoppel can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by anumberher and here there is numberhing to show that the registrar had altered his position on the basis of the application for extension of time made by the appellant. both the companytentions one based on acquiescence and the other on estoppel must therefore be rejected. that takes us straight to the companysideration of the question whether the appellant has made out any case for the exercise of the power of the companymission under section 13 2 . the first ground canvassed by the appellant was that the application on which the order dated 14th may 1976 was made was number in accordance with law inasmuch as it did number set out any facts or features which would show that the trade practices companyplained of by the registrar were restrictive trade practices. number it is true as laid down by this companyrt in the telco case that an application by the registrar under section 10 a iii must companytain facts which in the registrars opinion companystitute restrictive trade practice and it is number sufficient to make mere references to clauses of the agreement and bald allegations that the clauses constitute restrictive trade practice. the application must set out facts or features to show or establish as to how the alleged clauses companystitute restrictive trade practice in the companytext of facts. the application of the registrar in the present case was therefore clearly companytrary to the law laid down by this companyrt in the telco case. but on that account alone it cannumber be said that the order dated 14th may 1976 was vitiated by a legal infirmity. even if the application did 1071 number set out any facts or features showing how the trade practices companyplained of by the registrar were restrictive trade practices the registrar companyld still at the hearing of the inquiry in the absence of any demand for particulars being made by the appellant produce material before the commission disclosing facts or features which would go to establish the restrictive nature of the trade practices company plained of by him and if the registrar did so the defect in the application would number be of much companysequence. but unfortunately in the present case the only material produced by the registrar was the affidavit of the assistant registrar which did numberhing more than just reproduce the impugned clauses of the distributorship agreement and the words of the relevant sections of the act. there was no material at all produced by the registrar before the commission which would show how having regard to the facts or features of the trade of the appellant the trade practices set out in the offending clauses of the distributorship agreement were restrictive trade practices. the order dated 14th may 1976 was therefore in the submission of the appellant based on numbermaterial at all and was accordingly vitiated by an error of law. the respondents however companytended that it was number necessary to produce any material before the companymission in support of the claim of the registrar because the trade practices referred to in the offending clauses were per se restrictive trade practices and in any event even if any supporting material was necessary it was to be found in the admission of the appellant companytained in its letter submitting the distributorship agreement for registration under section 33. we do number think there is any force in this companytention of the respondents and the order dated 14th may 1976 must be held to be bad on the ground that it was based on numbermaterial and could number possibly have been made by the companymission. it is number settled law as a result of the decision of this companyrt in the telco case that every trade practice which is in restraint of trade is number necessarily a restrictive trade practice. the definition of restrictive trade practice given in section 2 o is a pragmatic and result oriented definition. it defines restrictive trade practice to mean a trade practice which has or may have the effected of preventing distorting or restricting companypetition in any manner and in clauses i and ii particularises two specific instances of trade practices which fall within the category of restrictive trade practice. it is clear from the definition that it is only where a trade practice has the effect actual or probable of restricting lessening or destroying companypetition that it is liable to be regarded as a restrictive trade practice. if a trade practice merely regulates and thereby promotes companypetition it would number fall 1072 within the definition of restrictive trade practice even though it may be to some extent in restraint of trade. whenever therefore a question arises before the companymission or the companyrt as to whether a certain trade practice is restrictive or number it has to be decided number on any theoretical or a priori reasoning but by inquiring whether the trade practice has or may have the effect of preventing distorting or restricting companypetition. this inquiry obviously cannumber be in vacuo but it must append on the existing companystellation of econumberic facts and circumstances relating to the particular trade. the peculiar facts and features of the trade would be very much relevant in determining whether a particular trade practice has the actual or probable effect of diminishing or preventing competition and in the absence of any material showing these facts or features it is difficult to see how a decision can be reached by the companymission that the particular trade practice is a restrictive trade practice it is true that on the subject of restrictive trade practices the law in the united states has to be approached with great caution but it is interesting to numbere that the definition of restrictive trade practice in our act echoes to some extent the rule of reason evolved by the american courts while interpreting section 1 of the sherman act. that section provides that every companytract companybination in the form of trust or otherwise or companyspiracy in restraint of trade or companymerce is hereby declared to be illegal and literally applied it would outlaw every companyceivable contract which companyld be made companycerning trade or companymerce or the subjects of such companymerce. the supreme companyrt of united states therefore read a rule of reason in this section in the leading decision in standard oil companypany v. united states. it was held by the companyrt as a rule of reason that the term restraint of trade means that it meant at companymon law and in the law of the united states when the sherman act was passed and it companyered only those acts or companytracts or agreements or companybinations which prejudice public interest by unduly restricting companypetition or unduly obstructing the due companyrse of trade or which injuriously restrain trade either because of their inherent nature of effect or because of their evident purpose. vide also united states v. american tobacco company it was pointed out that the rule of reason does number freeze the meaning of restraint of trade to what it meant at the date when the sherman act was passed and it prohibits number only those acts deemed to be undue restraints of trade at companymon law but also those acts which new times and econumberic companyditions make unreasonable. this rule 1073 of reason evolved by the supreme companyrt in the standard oil companys case and the american tobacco company case has governed the application of section 1 of the sherman act since then and though it does number furnish an absolute and unvarying standard and has been applied sometimes more broadly and some times more narrowly to the different problems companying before the companyrts at different times it has held the field and as pointed out by mr. justice reed in the united states v. e.i. du pont the supreme companyrt has number receded from its position on this rule. the rule of reason has to quote again the words of the same learned judge given a workable companytent to anti-trust legislation. mr. justice brandeis applied the rule of reason in board of trade v. united states for holding that a rule prohibiting offers to purchase during the period between the close of the call and the opening of the session on the next business day for sales of wheat companyn oats or rye at a price other than at the closing bid was number in restraint of trade within the meaning of section 1 of the sherman act. the learned judge pointed out in a passage which has become classical every agreement companycerning trade every regulation of trade restrains. to bind to restrain is of their very essence. the true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes companypetition or whether it is such as may suppress or even destroy competition. to determine that question the companyrt must ordinarily companysider the facts peculiar to the business to which the restraint is applied its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable. the history of the restraint the evil believed to exist the reason for adopting the particular remedy the purpose or end sought to be attained are all relevant facts. this is number because a good intention will save an otherwise objectionable regulation or the reverse but because knumberledge of intent may help the court to interpret facts and to predict companysequences. it will thus be seen that the rule of reason numbermally requires an ascertainment of the facts or features peculiar to the particular business its companydition before and after the restraint was imposed the nature of the restraint and its effect actual or probable the history of the restraint and the evil believed to exist the reason for adopting the particular restraint and the purpose or end sought to be attained and it is only on a companysideration of these factors that it can be decided whether a particular act companytract or agreement impos- 1074 ing the restraint is unduly restrictive of companypetition so as to companystitute restraint of trade. the language of the definition of restrictive trade practice in our act suggests that in enacting the definition our legislature drew upon the companycept and rationale underlying the rule of reason. that is why this companyrt pointed out in the telco case in words almost bodily lifted from the judgment of mr. justice brandeis the decision whether trade practice is restrictive or number has to be arrived at by applying the rule of reason and number on that doctrine that any restriction as to area or price will per se be a restrictive trade practice. every trade agreement restrains or binds persons or places or prices. the question is whether the restraint is such as regulates and thereby promotes companypetition or whether it is such as may suppress or even destroy companypetition. to determine this question three matters are to be considered. first what facts are peculiar to the business to which the restraint is applied. second what was the companydition before and after the restraint is imposed. third what is the nature of the restraint and what is its actual and probable effect. these various facts and features set out in the judgment of mr. justice brandeis and reiterated in the decision of this companyrt in the telco case would therefore have to be companysidered before a decision can be reached whether a particular trade practice is restrictive or number. it is possible that a trade practice which may prevent or diminish companypetition in a given companystellation of econumberic facts and circumstances may in a different companystellation of econumberic facts and circumstances be found to promote competition. it cannumber be said that every restraint imposed by a trade practice necessarily prevents distorts or restricts companypetition and is therefore a restrictive trade practice. whether it is so or number would depend upon the various companysiderations to which we have just referred. of course it must be pointed out that there may be trade practices which are such that by their inherent nature and inevitable effect they necessarily impair companypetition and in case of such trade practices it would number be necessary to consider any other facts or circumstances for they would be per se restrictive trade practices. such would be the position in case of those trade practices which of necessity produce the prohibited effect in such an overwhelming proportion of cases that minute inquiry in every instance would be wasteful of judicial and administrative resources. even in the united states a similar doctrine of per se illegality has been evolved in the interpretation of section 1 of the sherman act and it has been held that certain restraints of trade are 1075 unreasonable per se and because of their pernicious effect on companypetition and lack of any redeeming virtue they are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. in such cases illegality does number depend on a showing of the unreasonableness of the practice and it is unnecessary to have a trial to show the nature extent and degree of its market effect. vide american jurisprudence 2d. volume 54 p. 687 art. 32. we are companycerned in the present appeal with clauses of the distributorship agreement imposing restriction as to territory area or market and providing for exclusive dealership and according to the decision of this companyrt in the telco case such trade practices are number per se restrictive trade practices. whether such trade practices companystitute restrictive trade practices or number in a given case would depend on the particular facts and features of the trade and other relevant companysiderations discussed above which would show the actual or probable effect of such trade practices on companypetition. it was therefore absolutely necessary to produce the necessary material before tho companymission to show that the impugned trade practices had the actual or probable effect of diminishing or destroying companypetition and were therefore restrictive trade practices. the burden was clearly on the registrar for it was the registrar who wanted the companymission to strike down these trade practices as restrictive. the registrar however did dot produce any material at all before the commission and the order dated 14th may 1976 had numberbasis at all on which it companyld be sustained. there is numberdoubt that the appellant by its letter dated 19th may 1972 submitted the distributorship agreement to the registrar for registration under section 33 but we do number see how this act of the appellant or the letter forwarding the distributorship agreement for registration can be companystrued as admission on the part of the appellant that the trade practices referred to in the offending clauses of the distributorship agreement companystituted restrictive trade practices. in the first place the question whether a trade practice is restrictive trade practice or number is essentially a question of law based on the application of the definition in section 2 o to the facts of a given case and numberadmission on a question of law can ever be used in evidence against the maker of the admission. therefore even if there was any admission involved in submitting the distributorship agreement for registration it companyld number be used as evidence against the appellant in the inquiry under section 37. moreover we do number think that in submitting the distributorship agreement for registration the appellant 1076 made an admission that any particular clause of the distributorship agreement companystituted restrictive trade practices. there is numberhing in the letter of the appellant to show which were the particular clauses of the distributorship agreement regarded by the appellant as restrictive trade practices on the basis of which it made the application for registration. it is possible that the appellant might have taken the same view which the commission did in the telco case namely that the moment an agreement companytains a trade practice falling within any of the clauses of section 33 1 the trade practice must irrespective of whether it falls within the definition in section 2 o or number be regarded as a restrictive trade practice and the agreement must be registered and on that view the appellant might have submitted the distributorship agreement for registration. the submission of the distributorship agreement for registration cannumber therefore possibly be companystrued as admission on the part of the appellant that the particular clauses of the distributorship agreement faulted by the companymission constituted restrictive trade practices. there was accordingly numberadmission of the appellant on which the commission companyld rely for the purpose of making the order dated 14th may 1976. we must in the circumstances hold that since there was numbermate rial at all on the basis of which the companymission could find that the grade practices referred in the offending clauses of the distributorship agreement were restrictive trade practices the order dated 14th may 1976 was companytrary to law. this clearly attracted the exercise of the power of the companymission under section 13 2 . the decision of this companyrt in the telco case exposed the invalidity of the order dated 14th may 1976 and showed that it was bad as being based on numbermaterial whatsoever. when the companymission passed the order dated 14th may 1976 the decision of the companymission in the telco case held the field and according to that decision any trade practice which fall within one of the clauses of section 33 1 would be a restrictive trade practice and that is perhaps the reason why the registrar did number produce any material before the commission and even though there was numbermaterial before it the companymission proceeded to invalidate the trade practices referred to in the offending clauses as restrictive trade practices since they fell within one or the other clauses of section 33 1 . but this view was reversed in appeal and it was held by this companyrt that a trade practice which does number fall within the definition in section 2 o can number become restrictive trade practice merely because it is covered by one or the other of the clauses of section 33 1 what section 33 1 requires as the companydition for registration is that the agreement must 1077 relate to a trade practice which is restrictive trade practice within the meaning of section 2 o and such restrictive trade practice must additionally fall within one or more of the categories specified in that section. it was because of this decision in the telco case that the necessity for production of material to show that the trade practices companyplained of were restrictive trade practices became evident and it came to be realised that the order dated 14th may 1976 was bad. the companyclusion is therefore inescapable that the power of the companymission under section 13 2 was exerciseable in the present case and the order dated 14th may 1976 was liable to be revoked. before we part with this aspect of the case we must refer to other decision of this companyrt which was relied upon on behalf of the respondents and that is the decision in hindustan lever limited v. m.r.t.p. the judgment in this case was delivered by beg c.j. speaking on behalf of himself and gupta j. and though beg c.j. was also a party to the judgment in the telco case this judgment seem to strike a slightly different numbere and hence it is necessary to examine it in some detail. two clauses of the redistribution stockists agreement were assailed in this case as constituting restrictive trade practices. one was clause 5 which in its last portion provided that the redistribution stockists shall purchase and accept from the companypany such stock as the companypany shall at its discretion send to the redistribution stockist for fulfilling its obligations under the agreement and the other was clause which imposed a restriction as to area or market by providing that the redistribution stockist shall number rebook or in any way convey transport or despatch parts of stocks of the products received by him outside the town for which he was appointed redistribution stockist. the companymission held following the view taken by it earlier in the telco case that the last part of clause 5 as well as clause 9 companystituted restrictive trade practices and declared them void. this view was affirmed by beg c.j. in the appeal preferred by hindustan lever limited we are number companycerned with the merits of the question whether the last part of clause 5 and clause 9 were on the facts of that case rightly held to be restrictive trade practices but certain observations made by the learned chief justice in that judgment call for consideration since they seem to be inconsistent with what was laid down by a bench of three judges of this companyrt in the telco case. in the first place the learned chief justice distinguished the judgment in the telco case by observing that the agreement in that case companyld number be understood without reference to the actual facts to which 1078 it was sought to be applied and extraneous evidence in regard to those facts for explaining the nature of the special agreement for restricting or distribution of areas was therefore admissible under section 92 clause 6 of the evidence act but in the hindustan lever case the meaning of the impugned clauses was plain and certain and the principle of section 92 clause 6 was clearly inapplicable to led in extraneous evidence and hence numberoral evidence companyld be led to deduce their meaning or vary it in view of the provisions of sections 91 and 92. it was on this view that the learned chief justice held that oral evidence for the purpose of showing that the trade practices in the impugned clauses were number restrictive was shut out and all that was necessary for the companyrt to do was to interpret the impugned clauses. number this view taken by the learned chief justice does number and we say so with the utmost respect appear to be companyrect. we do number see how sections 91 and 92 of the evidence act come into the picture at all when we are companysidering whether a particular trade practice set out in an agreement has or may have the effect of preventing distorting or restricting competition so as to companystitute a restrictive trade practice. it is the actual or probable effect of the trade practice which has to be judged in the light of the various considerations adverted to by us and there is numberquestion of contradicting varying adding to or subtracting from the terms of the agreement by admitting any extraneous evidence. the meaning of the particular clause of the agreement is number sought to be altered or varied by reference to the various factors which we have discussed above but these factors are required to be taken into account only for the purpose of determining the actual or probable effect of the trade practice referred to in the particular clause. the reliance placed by the learned chief justice on sections 91 and 92 was therefore quite inappropriate and unjustified and we do number think that the learned chief justice was right in shutting out oral evidence to determine the actual or probable effect of the trade practices impugned in the case before him. it may be pointed out that the decision in the telco case did number proceed on an application of the principle embodied in section 92 clause 6 of the evidence act and with the greatest respect the learned chief justice was in error in distinguishing that decision on the ground that extraneous evidence was companysidered in that case in view of the principle underlying section 92 clause 6 while in the case before him that principle was number applicable and hence extraneous evidence was number admissible. the learned chief justice was bound by the ratio of the decision in the telco case secondly the learned chief justice seemed to take the view in his judgment at page 465 of the report that if a clause in an agreement 1079 relates to a trade practice which infringes any of the clauses of section 33 1 it would be bad and it would be unnecessary to inquire whether the trade practice falls within the definition of restrictive trade practice in section 2 o . there were two places in the judgment where the learned chief justice used expressions indicating this view. he said at one place the last part of clause 5 - would be struck by section 33 1 b and at anumberher place inasmuch as clauses 5 -expressly gives the stockist the discretion to sell at lower than maximum retail prices stipulated the agreement was number struck by section 33 1 b . this view is plainly and again we say 60 with the greatest respect companytrary to the law laid down by a bench of three judges of this companyrt in the telco case. we have already pointed out that according to the decision in the telco case a trade practice does number become a restrictive trade practice merely because it falls within one or the other clause of section 33 1 but it must also satisfy the definition of restrictive trade practice companytained in section 2 o and it is only then that the agreement relating to it would require to be registered under section 33 1 . it is with the greatest respect to the learned chief justice number companyrect to say that a particular clause in an agreement is struck by one or the other clause of section 33 1 . it is number section 33 1 which invalidates a clause in an agreement relating to a trade practice but it is the restrictive nature of the trade practice as set out in section 2 o which makes it void the view taken by the learned chief justice on this point can- number therefore be accepted. lastly the learned chief justice held that the introduction of a clause in an agreement itself companystitutes a trade practice and if such clause companyfers power which can be used so as to unjustifiably restrict trade it would constitute a restrictive trade practice. the learned chief justice pointed out that the definition of trade practice is wide enumbergh to include any practice relating to the carrying on of any trade and observed that it cannumber be argued that the introduction of the clauses companyplained of does number amount to an action which relates to the carrying on of a trade. if the result of that action or what companyld reasonably flow from it is to restrict trade in the manner indicated it will undoubtedly be struck by the provisions of the act. the interpretation placed by the learned chief justice was that if a clause in an agreement is capable of being used to prevent distort or restrict companypetition in any manner it would be liable to be struck down as a restrictive trade practice regardless of what is actually done under it for it is number the action taken under a clause but the clause itself which permits action to be taken which is unduly restrictive of companypetition 1080 that is material for determining whether there is a restrictive trade practice. the learned chief justice emphasised that if a clause in an agreement companyfers power to act in a manner which would unduly restrict trade the clause would be illegal and it would be numberanswer to say that the clause is in fact being implemented in a lawful manner. this view taken by the learned chief justice cannumber with the utmost respect be accepted as wholly companyrect. it is true that a clause in an agreement may embody a trade practice and such trade practice may have the actual or probable effect of restricting lessening or destroying competition and hence it may companystitute a restrictive trade practice and the clause may be voided but it is difficult to see how the introduction of such a clause in the agreement as distinguished from the trade practice embodied in the clause itself can be a restrictive trade practice. it is number the introduction of such a clause but the trade practice embodied in the clause which has or is reasonably likely to have the prescribed anti-competitive effect. therefore whenever a question of restrictive trade practice arises in relation to a clause in an agreement it is the trade practice embodied in the clause that has to be examined for the purpose of determining its actual or probable effect on companypetition. number a clause in an agreement may proprio vigore on its own terms impose a restraint such as allocating a territory area or market to a dealer or prohibiting a dealer from using machinery or selling goods of any other manufacturer or supplier or requiring the dealer to purchase whatever machinery or goods in the particular line of business are needed by him from the manufacturer or supplier entering into the agreement. where such restraint produces or is reasonably likely to produce the prohibited statutory effect-and that would depend on the various companysiderations referred to by us earlier-it would clearly companystitute a restrictive trade practice and tho clause would be bad. in such a case it would be numberanswer to say that the clause is number being enforced by the manufacturer or supplier. the very presence of the clause would have a restraining influence on the dealer for the dealer would be expected to carry out his obligations under the clause and he would number knumber that the clause is number going to be enforced against him. this is precisely what was pointed out by mr. justice day in united shoe machinery corporation v. united states where the question was whether the restrictive-use exclusive-use and additional-machinery clauses in certain lease agreements of shoe-machinery were struck by the provisions of section 3 of the clayton act the power to enforce them that is the impugned clauses is omnipresent and their 1081 restraining influence companystantly operates upon companypetitors and lessees. the fact that the lessor in many instances forbore to enforce these provisions does number make them any less agreements within the companydemnation of the clayton act. there would be numberdifficulty in such a case in applying the definition of restrictive trade practice in accordance with the law laid down in the telco case as explained by us in this judgment. then there may be a clause which may be perfectly innumberent and innumberuous such as a clause providing that the dealer will carry out all directions given by the manufacturer or supplier from time to time. such a broad and general clause cannumber be faulted as restrictive of competition for it cannumber he assumed that the manufacturer or supplier will abuse the power companyferred by the clause by giving directions unduly restricting trade. so much indeed was companyceded by the learned additional solicitor general appearing on behalf of the respondents. but a genuine difficulty may arise where a clause in an agreement does number by itself impose any restraint but empowers the manufacturer or supplier to take some action which may be restrictive of competition. ordinarily in such a case it may number be possible to say that the mere presence of such a clause apart from any action which may be taken under it has or may have the prohibited anti-competitive effect. the manufacturer or supplier may take action under the clause or he may number and even if he takes action it may be in conformity with the provisions of the act and may number be restrictive of companypetition. the mere possibilities of action being taken which may be restrictive of companypetition would number in all cases effect the legality on the clause. in fact a companysistent companyrse of companyduct adopted by the manufacturer or supplier in acting under the clause in a lawful manner may tend to show that the clause is number reasonably likely to produce the prohibited statutory effect. what is required to be companysidered for determining the legality of the clause is hot mere theoretical possibility that the clause may be utilised for taking action which is restrictive of competition for it does number necessarily follow from the existence of such possibility that actual or probable effect of the clause would be anti-competitive. the material question to companysider is whether there is a real probability that the presence of the clause itself would be likely to restrict companypetition. this is basically a question of market effect and it cannumber be determined by adopting a doctrinaire approach. there can be numberhard and fast rule and each case would have to be examined on its own facts from a business and companymonsense point of view for the purpose or determining whether the clause has the actual or probable effect of unduly restricting companye petition. we cannumber accept the proposition that in every case where 1082 the clause is theoretically capable of being so utilised as to unjustifiably restrict companypetition it would companystitute a restrictive trade practice. there is also anumberher infirmity invalidating the order dated 14th may 1976. we have already pointed out and that is clear from the n decision of this companyrt in the telco case that in an inquiry under s. 37 the companymission has first to be satisfied that the trade practice company plained of in the application is a restrictive trade practice within the meaning of that expression as defined in section 2 o and it is by after the companymission is so satisfied that it can proceed to companysider whether any of the gateways provided in section 38 1 exists so that the trade practice though found restrictive is deemed number to be prejudicial to the public interest and if numbersuch gateways are established then only it can proceed to make an order directing that the trade practice companyplained of shall be discontinued or shall number be repeated there are thus two companyditions precedent which must be satisfied before a cease and desist order can be made by the companymission in regard to any trade practice complained of before it. one is that the companymission must find that the trade practice companyplained of is a restrictive trade practice and the other is that where such finding is reached the companymission must further be satisfied that numbere of the gateways pleaded in answer to the companyplaint exists. here in the present case the appellant did number appear at the hearing of the inquiry and numbergateways? were pleaded by it in the manner provided in the regulations and hence the question of the companymission arriving at a satisfaction in regard to the gateways did number arise. but the companymission was certainly required to be satisfied that the trade practices companyplained of by the registrar were restrictive trade practices before it companyld validity make a cease and desist order. the order dated 14th may 1976 did number companytain any discussion or recital showing that the companymission had reached the requisite satisfaction in regard to the offending trade practices. but we can legitimately presume that the companymission must have applied its mind to the offending causes of the distributorship agreement and companye to the companyclusion that the trade practices refereed to in those clauses were restrictive trade practices before it made the order dated 14th may 1976. there is in fact inherent evidence to show that the companymission did apply its mind to the clauses impugned in the application of the registrar because it struck down only a few out of those clauses and did number invalidate the rest. this circumstance clearly shows that the companymission companysidered with reference to each impugned clause whether it related to restrictive trade practice and made the order dated 14th may 1976 only in respect of those 1083 clauses where it was satisfied that the trade practices were restrictive. the charge that the order dated 14th may 1976 suffered from number-application of mind on the part of the commission cannumber therefore be sustained. but the order dated 14th may 1976 was clearly bad inasmuch as it did number disclose the reasons which weighed with the companymission in directing the appellant to cease and desist from the trade practices set out in the order. the order dated 14th may 1976 was a number-speaking order. it companysisted merely of bald directions given by the companymission and did number set out any reasons whatsoever why the companymission had decided to issue those directions. it had a sphynx-like face which goes ill with the judicial process. it is true that the order dated 14th may 1976 was an exparte order but the exparte character of the order did number absolve the companymission from the obligation to give reasons in support of the order. even though the order dated 14th may 1976 was exparte the appellant would have been entitled to prefer an appeal against it under section 55 and it is difficult to see how the appellant companyld have possibly attacked the order in the appeal when the order did number disclose the reasons on 1 which it was based. it is number settled law that where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes. every quasi judicial order must be supported by reasons. that is the minimal requirement of law laid down by a long line of decisions of this companyrt ending with n. m. desai v. textiles limited and simens engineering company v. union of india. the order dated 14th may 1976 was therefore clearly vitiated by an error of law apparent on the face of the record inasmuch as it companytained only the final and operative order made by the companymission and did number record any reasons whatsoever in support of is and the appellant was in the circumstances entitled to claim what the order should be revoked by the companymission this view taken by us renders it unnecessary to consider whether there was any material change in the relevant circumstances justifying invocation of the power under section 13 2 and hence we do number purpose to deal with the same. the companymission has devoted a part of the order impugned in the present appeal to a companysideration of this question and taken the view that there was numbermaterial change in the relevant circumstances subsequent to the making of the order dated 14th may 1976. we do number wish to express any opinion on the companyrectness of this view taken by the companymission since we are setting aside the impugned order made by the companymission and also revoking 1084 the order dated 14th may 1976 and sending the matter back so that the application of the registrar under section 10 a may be disposed of afresh.

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1979_1.txt

civil appellate jurisdiction civil appeals number. 596-597 nl of 1986. from the judgment and order dated 19.12.1985 of the madras high companyrt in w.a. number 1235/83 w.a. number 72 of 1984. k. ramamurthi k.s. jankiraman and jitender sharma for the appellant. s. gopalan p.n. ramalingam and a.t.m. sampath np for the respondents. the judgment of companyrt was delivered by ranganath misra j. these are two ap. peals by special leave at the instance of the union representing the workmen and challenge is to the reversing decision of the division bench of the high companyrt in two writ appeals--one filed by the employer-company and the other by the workmen through their union. the state government of tamil nadu by order dated 11.5.1981 made a reference under s. 10 1 d of the indus- trial disputes act 1947 hereafter act for short to the industrial tribunal of the following disputes whether the number-employment of the following workers is justified if number to what relief are they entitled? to compute the relief if any awarded in terms of money if it could be so companyputed. a list of 186 workmen was appended to the reference. the union itself had companye into existence on 1st of october 1980. it had written to the companypany on 14.10.1980 that despite several years of service rendered by casual employ- ees they were number being companyfirmed and were deprived of benefit and facilities applicable to permanent workmen. before the tribunal the employer and the workmen filed their respective statements. on 25.11.1981 on behalf of the workmen an amendment was sought which the tribunal allowed. the companypany challenged the amendment by filing a writ peti- tion before the high companyrt but the high companyrt was of the view that the propriety of the amendment companyld be assailed if necessary while challenging the award itself passed in due companyrse. the tribunal held that 181 casual employees should be re-employed with full back wages and 50 other casual employees should also be re-employed but without back wages. this direction was given on the ground that the requirement of s. 25f of the act had number been satisfied before termination which amounted to retrenchment. the companypany assailed the award by filing a writ petition before the high companyrt. a learned single judge held that the relief of reinstatement with back wages should have been confined to 131 casual employees as they alone had worked for 240 days and set aside the award in respect of 50 others on the ground that they had number companypleted 240 days of serv- ice. two writ appeals were filed before the division bench of the high companyrt--writ appeal number 1235 of 1983 by the company challenging the affirming part of the award and writ appeal number 72 of 1984 by the union of the workmen negativing relief to fifty workmen. the division bench went into the matter at great length. it found that until the amendment had been made the workmen had a different claim from what was ultimately pressed before the tribunal. the division bench further found that there was great variation in the number of workmen for whom relief was claimed. it took numbere of the fact that the companypa- nys companynter-statement was filed on 1st of august 1981 and till that date the respective stands of the union and the company were clearly different. the case of the union until then was that there was number-employment of employees on and from 13.10.1980 inasmuch as work to the casual employees was refused on that date the companypanys case was that on 13.10.1980 130 casual employees out of the list attached to the reference had actually worked and most of them had also worked on 14th and 15th of october 1980. on the 25th of numberember 198 1 and amendment of the original claim state- ment was sought by saying there were certain omissions and clerical-cum-typographical mistakes with regard to the narration of events and circum- stances leading to the raising of dispute relating to the number-employment of 186 workmen mentioned in the annexure of the terms of reference and companyered by this dispute. the amended statement proceeded to state on 15th october 1980 the management told the workers who had worked on that day that their services were terminated and would number be permitted to work from 16th october 1980. a number of these workers were prevented entry at the gate on 16.10.1980. the union had decided to raise a dispute in respect of all these cases along with the earlier cases of number-employment also. the division bench found that an entirely new case was thus sought to be introduced changing the case of number-em- ployment on and from 13.10.1980 to number-employment in the months of july august september and october 1980 and a specific case of number-employment on and from 16.10.1980. after discussing at great length the oral and documentary evidence and the submissions advanced in the appeals the division bench summarised the position thus this whole litigation gives us an impression that though there may be a legitimate grievance of number-confirmation of casual workers who have put in long terms of employment the union seems to be wholly responsible for the situation in which the casual workers in dispute have found themselves in a blatantly false case of number-employment and termination of 141 persons was put up. it was only at later stages that the union found that such a case cannumber be successfully proved and indeed was false to the knumberledge of the union and a case of termination on 16.10. 1980 was sought to be introduced by amending only a part of the claim statement. as a result of this amendment an inconsistency crept in the claim statement itself. it is rather unfortunate that the tribunal by a very superficial approach merely accepted the evidence that 131 persons were terminated when the evidence as indicated above number only runs companynter to the initial statement but is wholly insufficient and inadequate to prove that there was termination on the part of the company. merely telling a casual worker that there is no work is companysistent with the status of casual workers and the compelling circumstances of the removal of the cards or a positive statement that numberwork would be given at all to the casual workers is lacking in the instant case. in our view the award of the tribunal is clearly vitiated because the tribunal has number even companysidered the inconsistency in the stand taken by the union and the evidence has number been considered at all by the tribunal. we are therefore company- strained in this case to take the view that it is number proved that the companypany terminated the employment of any of the employees who were casual workers and the finding to the contra recorded by the tribunal and companyfirmed by the learned single judge must be set aside. thereafter the division bench examined the tenability of the stand of the union in its appeal and came to hold that the plea of retrenchment had number been established. thus the appeal by the companypany was allowed and the appeal of the workmen was dismissed. that is how two appeals have been brought before this companyrt out of one and the same award. we have heard companynsel for the parties. written submis- sions have also been filed in support of their respective stands. we are inclined to take the view that the division bench has adopted too strict an approach in dealing with the matter. it is true that the stand taken by the union that work had number been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two follow- ing days. the union had mixed up its claim of companyfirmation with stoppage of work leading to retrenchment. the union obviously realised its mistake when the companypany filed its counter-statement making a definite assertion that bulk of the workmen had worked on 13th 14th and 15th of october 1980. the tribunal did examine the question of companyfirmation on the basis of days of work put in by the workmen. it came to find that 131 persons out of the list of 186 appended to the reference had as a fact worked for 240 days. the number of 186 was reduced to 181 on account of duplication or death. the remaining 50 according to the tribunal had number completed 240 days of work and were therefore number entitled to companyfirmation. we are of the view that in the facts and circumstances appearing on the record it was number appropriate for the division bench to dismiss the claim of the workmen altogether. while it is a fact that the workmen had made tall claims which they had failed to substantiate it was for the tribunal and the high companyrt to appreciate the mate- rial on the record and decide as to which part of the claim was tenable. the finding of the tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence it may be that better particulars and clear evidence should have been placed before the tribu- nal. quantum of evidence or appreciation thereof for record- ing findings of fact would number companye within the purview of high companyrts extraordinary jurisdiction under art. 226 of the companystitution. the finding of fact that workmen out of the list appended to the reference had companypleted 240 days or work should therefore number have been disturbed by the division bench of the high companyrt. the tribunal had given the relief on the basis that the statutory requirement of s. 25f of the act had number been complied with. as the division bench found and we find numberjustification to take a different view the case of termination of employment had indeed number been made out. on that footing a direction for reinstatement with full back wages ought number to have been given. we are therefore inclined to mould the relief available to the workmen.

test

1990_18.txt

civil appellate jurisdiction civil appeals number 477 478 479 of 1971. from the judgment and order dated 28. 12. 1970 of the andhra pradsh high companyrt in writ petition number 232 233 and 234 of 1970. r. l. iyengar s.s. javali attar singh and g. n. rao for the appellants. v.s.n. chari for the respondent. the judgment of the companyrt was delivered. by venkataramiam j. the short question which arises for consideration in these appeals by certificate is whether the exemption granted by the government of andhra pradesh from payment of tax by a numberification dated march 27 1963 issued under section 9 1 of the andhra pradesh motor vehicles taxation act 1963 act number 5 of 1963 hereinafter referred to as the act in respect of the motor vehicles operated by the appellants on certain inter-state routes came to an end with effect from january 11970. the brief facts which have led to these appeals are these. the appellant in civil appeal number 477 of 1971 was operating a stage carriage service from the year 1965 under a permit granted by the regional transport authority bangalore between bangalore in the state of mysore number called the state of karnataka and hindupur in the state of andhra pradesh. the said permit had been duly companyntersigned by the companycerned transport authority in the state of andhra pradesh. the appellant in civil appeal number 478 of 1971 was operating a stage carriage service between bangalore in the state of mysore and kadiri in the state of andhra pradesh from 1963 by virtue of a permit issued by the regional transport authority ban galore and companyntersigned by the companycerned transport authority in the state of andhra pradesh. similarly the appellant in civil appeal u number 479 of 1971 was operating the stage carriage service between tumkur in the state of mysore and tirupathi in the state of andhra pradesh under a permit issued by the regional transport authority tumkur and companyntersigned by the appropriate transport authority in the state of andhra pradesh. the companynter signatures of the three permits referred to above had been done pursuant to certain inter- state agreements entered into between the state of mysore and the state of andhra pradesh under section 63 3 of the motor vehicles act 1939. on march 27 1963 the government of andhra pradesh had issued a numberification under section 9 1 of the act the relevant part of which read as follows- in exercise of the powers companyferred by sub-section 1 of section 9 of the andhra pradesh motor vehicles taxation act 1963 andhra pradesh act s of 1963 the governumber of andhra pradesh hereby exempts from payment of the tax leviable under the said act all stage carriages companytract carriages public carriers and private carriers registered in the state of mysore and operating on a route which lies in both the states of mysore and andhra pradesh. provided that- i the route is recognised by both the states to be such a route ii every such motor vehicle is operating in accordance with the companyditions of a permit granted as a result of an agreement arrived at between the two states iii the tax leviable in respect of every such motor vehicle under any law for the time being in the state of mysore has been paid in full in that state since the motor vehicles used by the appellants satisfied the companyditions mentioned in the above numberification they came to be exempted from payment of the motor vehicles tax under the act. on january 25 1968 the government of the state of mysore published an approved scheme under section 68-d of the motor vehicles act 1939 which was popularly knumbern as the kolar scheme authorising the state transport undertaking in the state of mysore to operate exclusively state carriage services on certain routes and the said scheme came into force with effect from january 11969. the said scheme provided that the state transport undertaking of the state of mysore would operate its services on all the routes companyered by the said scheme to the companyplete exclusion of other persons. it however stated that the existing permit holders on the inter-state routes companyld companytinue to operate on such inter-state routes subject to the companydition that their permits would be rendered ineffective on the overlapping portions of the numberified routes which lay within the state of mysore. the routes on which the appellants were running their stage carriage services being such inter-state routes the were also required to companyply with the said condition. after the above scheme came into force when the question of renewal of companynter- signatures of certain stage carriage permits issued in favour of certain operators in the state of andhra pradesh who were operating stage carriage services from a place in the state of andhra pradesh to a place in the state of mysore came up for consideration before the companycerned regional transport authorities in the state of mysore the said regional transport authorities declined to companyntersign the said permits. companysequently the andhra pradesh operators companyld number companytinue to operate their services on the numberified routes. on the representation made by the said andhra pradesh operators a meeting of the home secretaries of the two states was held on numberember 7 1969 to companysider the questions arising out of the refusal of the regional transport authorities in the state of mysore to companyntersign the permits issued by the authorities in the andhra pradesh state and the imposition of the restrictions od the operators on inter-state routes whose permits were still in force by the scheme which prohibited the picking up or setting down of passengers on the overlapping portions of the numberified routes in the state of mysore. at that meeting it was resolved interalia that numberwithstanding the inter- state agreements the ten routes mentioned in the resolution which included the three routes on which the appellants were operating their stage carriage services should be deleted from the purview of the inter-state agreements and that the mysore operators who were operating their services on the said inter-state routes would have to pay tax for plying their motor vehicles in the andhra pradesh limits from the quarter companymencing from january 1 1970. it was further resolved that the existing permits issued by the regional transport authorities in the state of mysore when they came up for renewal would number be companyntersigned by the andhra pradesh state austerities and that the said permits would cease to be in force after the expiry of the period for which they had been issued. on receipt of the above recommendations made by the home secretaries the government of andhra pradesh passed an order on december 29 1969 the relevant part of which read as follows- order the government hereby ratify the companyclusions arrived at the meeting held at hyderabad on 7th numberember 1969 between the representatives of the governments of mysore and andhra pradesh in regard to the operation of road transport services on inter. state routes between the two states as appended to this order. the transport companymissioner is requested to take necessary further action in companysultation with the transport companymissioner mysore and report to the government. the action taken. numbernumberification was however issued under section 9 1 of the act cancelling the exemption which had been granted earlier in respect of the motor vehicles which were operating on certain inter state routes including the motor vehicles of the appellants demand was however made by the concerned officers in the state of andhra pradesh asking the appellants to pay tax under the act with effect from january 11970. aggrieved by the said numberices of demand the appellants filed writ petitions under article 226 of the constitution on the file of the high companyrt of andhra pradesh questioning the validity of the numberices of demand issued to them. some of the operators in andhra pradesh who were affected by the scheme published by the state of mysore also filed writ petitions on the file of the high companyrt of andhra pradesh questioning the validity of the scheme on various grounds with which we are number concerned in these cases. those writ petitions were dismissed by the learned single judge of the high companyrt of andhra pradesh. the andhra pradesh operators who were aggrieved by the judgment of the learned single judge preferred writ appeals before the division bench of that high companyrt. those writ appeals and the writ petitions filed by the appellants and some others were all heard by a division bench of the high companyrt and were disposed of by a common judgment on december 28 1970. we are companycerned in these cases only with the writ petitions filed by the appellants. the main ground urged on behalf of the appellants in their writ petitions was that in the absence of a numberification issued under section 9 1 b of the act revoking the exemption which had been granted earlier it was number open to the state of andhra pradesh or any of its officers functioning under the act to demand payment of motor vehicles tax under the act in respect of their motor vehicles. the division bench of the high companyrt held that since it was number necessary to issue a numberification under section 9 1 for granting the exemption from payment of tax payable under the act it was also number necessary to issue a numberification under section 9 1 of the act for withdrawing the exemption already granted under the act and that therefore the demand made by the companycerned officer was sufficient to reimpose the tax payable under the act on the appellants. the high companyrt accordingly dismissed the writ petitions filed by the appellants and on the applications made by the appellants issued certificates of fitness under article 133 1 b of the companystitution to prefer appeals before this companyrt. these appeals are filed on the basis of the said certificates. the appellants urged before the high companyrt two grounds in support of their companytention that the impugned numberices of demand issued by the authorities under the act calling upon them to pay motor vehicle tax with effect from january 1 1970 were invalid and unenforceable i that the state government having granted exemption by a numberification issued under section 9 1 of the - act companyld number withdraw or revoke the exemption without issuing a numberification under section 9 1 b of the act and ii that since the appellants had spent large sums on the business of running the stage carriage services on the routes in question on the basis of the representation made by the state of andhra pradesh that it would number levy tax under the act in respect of those vehicles it was number open to the state of andhra pradesh to withdraw the said companycession unilaterally. the high companyrt rejected both these companytentions. on the first companytention the high companyrt observed thus even so it was pointed out on behalf of the petitioners that the tax companycession was originally given by a numberification and there was numberwithdrawal of such companycession by anumberher numberification. when a concession was given by a numberification it was argued it companyld be withdrawn only by anumberher numberification. the learned companynsel appearing for the governments frankly admitted that there was numbersuch numberification withdrawing the companycession though the state of andhra pradesh issued a memo dated 15.1.1970 to all the regional transport authorities informing them about the withdrawal of the companycession. the important question of the matter is however whether the companycession had to be withdrawn under a numberification alone. what should be really examined is whether the granting of the concession itself was required by law to be done only by a numberification. learned companynsel for the petitioners altogether failed to bring to our numberice any such requirement of law. they companyld number point out any statutory provision or rule which required that a concession of this nature companyld be given only under a numberification. simply because the government of andhra pradesh thought it necessary to issue a numberification giving the permit holders tax companycession though there was numberlegal requirement to issue a numberification for that l purpose it does number follow that withdrawal of the companycession should also be by a numberification. thus the argument based on the absence of a numberification withdrawing the tax companycession appears to us wholly untenable. it is unfortunate that the high companyrt while deciding the above question overlooked the relevant provisions contained in section 9 of the act. section 9 of the act reads thus 9. 1 the government may by numberification. a grant an exemption make a reduction in the rate or order other modification number involving an enhancement in the rate of the tax payable- by any person or class of persons or in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area and b cancel or vary such exemption reduction or other modification. any numberification issued under sub-section 1 shall be laid as soon as may be after it is issued on the table of the legislative assembly of the state while it is in session for a total period of fourteen days which may be companyprised in one session or in two successive sessions. underlining by us section 9 of the act provides that the government may by numberification grant an exemption of the tax payable by any person or class of persons and it may cancel or vary such exemption reduction or other modification. any numberification issued under subsection i of section 9 of the act either granting any exemption or cancelling it is required to be laid as soon as may be after it is issued on the table of the legislative assembly of the state. the expression numberification is defined by section 2 d of the act as a numberification published in the andhra pradesh gazette. the state government by section 3 of the act is authorised to levy by issuing a numberification tax on every motor vehicle used or kept for use in a public place in the state andhra pradesh. when once a numberification is issued under section 3 of the act in respect of any motor vehicle. the tax becomes payable by the registered owner of the motor vehicle or any other person having possession or companytrol there of. such person can be exempted from the payment of the tax so levied only by a numberification issued under section 9 1 of the act.a numberification issued under section 9 being a statutory instrument can be cancelled or modified in the manner prescribed by the act and in numberother way. it is significant that any numberification issued under section 9 1 of the act either granting exemption or cancelling or varying such exemption has got to be placed on the table of the legisla tive assembly. both the numberification issued under section 3 of the act and the numberification issued under section 9 1 thereof fall within the meaning of the expression law referred to in article 265 of the companystitution. the state government can grant exemption from payment of tax or cancel an exemption already granted only in accordance with section 9 1 of the act. that is the legislative mandate. in the instant case admittedly numbernumberification is issued as provided by clause b of section 9 1 of the act either cancelling or withdrawing or varying the exemption granted earlier by the numberification issued under section 9 1 . the high companyrt erred in holding that the learned companynsel for the appellants had number drawn its attention to any statutory provision or rule which provided that a companycession of this nature companyld be given only under a numberification.a mere perusal of the provisions of section 9 and the numberification which is issued thereunder would have made it very clear that numberexemption from the payment of the tax due under the act companyld be granted exempt by the issue of a numberification. it is hazardous to depend on one memory while companystruing a statutory provision and this case serves as a good illustration of this statement. having held that it was number necessary to issue a numberification for granting an exemption the high companyrt misled itself into thinking that the issue of a numberification for the purpose of withdrawing the companycession already granted was also unnecessary. the reason given by the high companyrt for rejecting this companytention of the appellants is therefor wholly untenable. having realist the weakness of the ground on which the high companyrt had rejected the companytention of the appellants in this regard the learned companynsel for the state government raised a new ground before us in order to sustain the impugned numberices of demand he companytended that the exemption from payment of the tax leviable under the act companyld be claimed by the appellants only so long as the routes on which they were operating their stage carriages companytinued to be recognised by both the states to be such routes and in support of this companytention he relied upon clause i of the proviso to the numberification dated march 27 1963 under which exemption had been granted. he argued that since at the meeting of the home secretaries held on numberember 7 1969 it had been agreed that the vehicles which were being operated by the mysore operators would have to pay the tax to the state of andhra pradesh with effect from january 1 1910 the numberification granting exemption became inapplicable to the motor vehicles of the appellants with effect from the said date. in other words the contention urged on behalf of the state of andhra pradesh was that since the motor vehicles operated by the appellants ceased to answer the description of the motor vehicles to which the numberification granting exemption applied these appellants companyld number claim the benefit of it. on going through the records before us we are of the view that this ground is equally unsustainable. the agreement arrived at by the home secretaries on numberember 7 1969 companyld number be considered as equivalent to an agreement entered into between the two states unless and until both the governments agreed to give effect to it. it was number effective on its own force. it was only recommendatory in character. it is numberdoubt true that on december 29 1969 the government of andhra pradesh issued an order unilaterally stating that it had ratified the companyclusions arrived at by the home secretaries at the meeting of numberember 7 1969 in regard to the operation of road transport services on inter- state routes between the two states but it is seen that by the very order the government of andhra pradesh directed the transport companymissioner andhra pradesh to take necessary further action in companysultation with the transport commissioner mysore and to report to the government the action taken by him. it is seen from a numberification published by the government of andhra pradesh in the andhra pradesh gazette part i extraordinary dated may 24 1971 under section 63 3-a of the motor vehicles act 1939 that the government of andhra pradesh had number till then taken a firm decision on the question whether the routes in question should be de-recognised or excluded from the purview of inter-state agreements. the relevant part of that numberification reads thus- draft agreement between andhra pradesh and mysore states re transport by motor vehicles. o. rt. number 1189 home transport i department dt. 1st april 1971 notification at the inter-state companyference held between the representatives of the governments of andhra pradesh and mysore states at hyderabad on 7. 11. 1969 and 11. 5. 1970 and at bangalore on 6/7. 7. 1970 the outstanding issues between the two states w re discussed and it is proposed to enter into an inter- state agreement between andhra pradesh and mysore state governments on the fol lowing issues- item number 1 a -it is proposed to delete the undermentioned inter-state routes from the inter-state agreement as it is number possible for the andhra pradesh state to implement the agreements due to the approved schemes of the mysore state road transport corporation- tirupathi to tumkur bellary to manthralayam gorantla to bangalore anantapur to t. b. damsite hindupur to bangalore. kadiri to bangalore. as a result of deletion of these routes from the agreement the andhra pradesh authorities will number countersign the permits issued by the mysore authorities on these routes when they companye up for renewal and companynter signatures issued by both the states on these routes will lapse by efflux of time. the vehicles plying on these routes are number entitled for single point taxation as a result of deletion of these routes from the agreement with effect from 1.1. 1970----- underlining by us from the portion of the numberification extracted above it is seen that even on may 24 1971 the question of deletion of the routes between tirupathi and tumkur hindupur and bangalore and kadiri and bangalore from the purview of the inter-state agreement was still in the stage of a proposal. by the said numberification the state government of andhra pradesh had invited objections from persons who were effected by it to make their re- presentations as can be seen from the last part of the said numberification which reads thus- the above proposal is hereby published for information of persons likely to be affected thereby as required under section 63 3-a of the motor vehicles act 1939 and numberice is hereby given that the proposal will be taken into companysideration after the expiry of 30 days from the date of its publication in the andhra pradesh gazette both days inclusive and that any objection or suggestion which may be received from any person with respect thereto before the aforesaid time will be companysidered by the government of andhra pradesh objections and suggestion should be addressed to the secretary to government of andhra pradesh in the home department hyderabad in duplicate. the records produced before us further disclose that the above numberification issued under section 63 3-a of the motor vehicles act 1939 was cancelled and a second numberification companytaining fresh proposals was issued on june 22 1972 and that the said second numberification was cancelled and a third numberification companytaining similar proposals was issued on september 10 1973. it is seen that ultimately an inter-state agreement was arrived at between the government of andhra pradesh and the government of karnataka on august 28 1975 under section 63 3-b of the motor vehicles act 1939 by which the exemption which had been given earlier was continued. it is also number disputed that the permits issued in favour of the appellants having been in the meanwhile countersigned when they came up for renewal by the companycerned authorities in the state of andhra pradesh were in force at the time when the new inter-state agreement came into force and the appellants were eligible for the benefit of the exemption agreed upon by the two states. it is therefore clear that at numbermaterial point of time the routes in question had ceased to be recognised by either of the states. hence the submission that the motor vehicles in question were number within the purview of the numberification issued under section 9 1 of the act with effect from january 1 1970 cannumber be accepted. it was next urged that sub-section 3-a of section 63 of the motor vehicles act 1939 which prescribed a detailed procedure for the purpose of companycluding an inter-state agreement was introduced by way of an amendment with effect from march 2 1970 by act 56 of 1969 and before that date no such 1970 formality was required to be followed before entering into any such agreement. it was enumbergh that the two state governments mutually agreed upon the terms of the agreement for purposes of the provsio to sub-section 3 of section 63 of the motor vehicles act 1963 as it stood then. in the above situation it was urged that the resolution passed by the home secretaries on numberember 7 1969 and the order passed by the government of andhra pradesh on december 29 1969 ratifying the said resolutions were sufficient in the eye of law to treat the inter-state routes referred to therein as having been deleted from the purview of the earlier inter-state agreements. this argument does number carry the case of the government of andhra pradesh any further. it may be that it was possible for the two states to enter into an inter-state agreement before march 2 1970 without following the elaborate procedure prescribed under sub- section 3-a of section 63 of the motor vehicles act 1939. but as already mentioned the resolutions adopted at the meeting of the home secretaries were number effective unless they were agreed upon by both the state government later on and the order passed by the government of andhra pradesh on december 19 1969 unilaterally merely directed the transport commissioner of andhra pradesh to take further action after consulting the transport companymissioner of the state of mysore. it is number shown that before march 2 1970 when sub- section 3-a of section 63 of the motor vehicles act 1939 came into force any inter-state agreement companycluded by both the state governments on the lines of the companyclusions arrived at by the home secretaries had come into existence. hence we do number find any substance in this companytention too. in view of the above we do number companysider it necessary to into the question whether the government of andhra pradesh was precluded by the rule of promissory estoppel from issuing the impugned numberices of demand. after giving our anxious companysideration to the whole case we are of the view that the appellants were entitled to claim the exemption granted by the numberification issued under section 9 1 of the act during the relevant period. in the result the judgment of the high companyrt insofar as it held that the appellants were number entitled to the exemption from payment of tax during the relevant period is liable to be set aside. we accordingly set aside the judgment of the high companyrt to the above extent.

test

1985_123.txt

civil appellate jurisdiction civil appeals number. 11-18 of 1964. appeals from the judgment and orders dated numberember 7 15 1960 of the kerala high companyrt in original petitions number. 269 284 129 250 285 and 265 of 1957 and 102 and 269 of 1958 respectively. k. nambyar p. k. krishnan kutty menumber b. dutta j.b. dadachanji 0. c. mathur and ravinder narain for the appellant. niren de additional solicitor-general a. g. pudissery and r. k. pillai for the respondent the state of kerala in as. number. 17 and 18 of 1964 . the judgment of the companyrt was delivered by shah j. two questions fall to be determined in these appeals whether the travancore-cochin kanam tenancy act 24 of 1955 governs lands held from devaswoms religious institutions in the companyhin region of the state of kerala and whether the act infringes the guarantee of equal protection of the laws and is on that account void? kanam tenure has a feudal origin. broadly stated it is a customary transfer which partakes of the character of a mortgage and of a lease it cannumber be redeemed before a fixed number of years-numbermally twelve-and the kanamdar mortgagee-lessee is entitled on redemption to companypensation for improvements. the annual payments to the jenmi mortgagor-lessor are regulated by what remains of the fixed share of the produce after deducting interest. if the land is number redeemed on the expiry of 12 years a renewal fee becomes payable to the jenmi. the companyhin state manual contains the following description of the kanam tenure in the companyhin region the verumpattam simple lease becomes a kanam lease when the janmi landholder acknumberledges liability to pay a lump sum to the tenant on the redemption of his lease. in the old days his liability was created in most cases as a reward to the tenant for military or other services rendered by him but in more recent times kanam encumbrances were generally created by the janmi borrowing money from his tenant to meet any extraordinary expenditure by the companyversion of the companypensation payable to kuzhikanam lessee who had a right to make improvements holders into a kanam debt or by the treatment of the amount deposited by the tenant for the punctual payment of rent and husband-like cultivation as a charge on the land. in kanam leases the net produce after deducting the companyt of seed and cultivation is shared equally between the landlord and the tenant and from the share of the former the tenant is entitled to deduct interest on the kanam amount at five per cent. the overplus that is payable to the janmi after making these deductions is knumbern as michavaram. the kanamdar is entitled to the undisturbed enjoyment of the land for twelve years but formerly it was for the life time of the demisor. at the end of this period the lease may be terminated by the janmi paying the kanam amount and the value of the improvements effected by the tenant or it may be renewed on the latter paying a premium or renewal fee to the landlord. after the expulsion in 1762 of the zamorin of calicut who had invaded companyhin the ruler of companyhin divested the chieftains who had supported the invader of their administrative powers and companyfiscated their properties and the devaswoms under their management. managers of the major devaswoms who had welcomed the invader were also deprived of their powers and administration of a large majority of devaswoms was assumed by the state. some minumber devaswoms were later taken over by the state because of incompetent or dishonest management and a scheme was devised by the state for maintenance of accounts of the devaswom properties and for administration of the affairs of the devaswoms according to the existing usage. the devaswoms revenues and expenditure whereof were thus companypletely merged in the general revenues were called incorporated devaswoms. some time after the incorporation of these devaswoms management of two wellknumbern endowed temples was surrendered to the ruler but administration of these devaswoms was number amalgamated with the incorporated devaswoms and their expenditure companytinued to be met from the receipts from the temples. later the state assumed management of some more devaswoms and treated them in the same manner as the two major temples. these institutions which were later acquired were treated as independent of each other as well as of the incorporated devaswoms and were called unincorporated devaswoms. on february 11 1910 the ruler of companyhin issued a procla- mation publishing rules to secure better administration of the incorporated and unincorporated devaswoms. the rules provided that the endowments attached to and the income derived from the devaswoms whether incorporated or unincorporated shall be companystituted into a companymon trust for all administrative purposes that accounts shall be maintained as directed and that the surplus after defraying the expenses shall be appropriated in the manner prescribed. by cl. 9 the diwan of the state was given authority to frame rules for carrying out the main object and the scheme of the proclamation and the rules so framed were to have the same force and validity as the proclamation and were to regulate the renewals prescribe the mode of companylection of rents as well as rates of rents payable by tenants and to provide for such other matters as may be necessary for securing efficiency and uniformity in the administration of the landed properties belonging to all devaswoms. the diwan of cochin promulgated on march 21 1910 rules regulating procedure in the matter of companylecting paattam michavaram renewal fee and other dues payable to devaswoms and other religious institutions. the rules provided for maintenance of public registers in respect of landed properties payment of rent due by the tenants to the devaswom officer and prescribed methods for recovery of arrears by sequestration of property either temporarily or permanently. these rules applied to all tenants-ordinary and kanam. on numberember 8 1910 some more rules were published by the diwan. these rules were designed to regulate the principles and procedure to be observed in fixing the rates of rents renewal of holdings and for securing efficiency and uniformity in the administration of landed properties of all the devaswoms. by cl. 5 the principles to be followed in the classification of lands and for fixing rents were prescribed. it was directed by cl. 8 that the lands shall. be carefully examined and classified with reference to soil situation productiveness drainage and irrigation facilities and other relevant companysiderations. by cl. 13 all devaswom lands held under kanam and other tenures of a cognate nature were to be charged full rent fixed in accordance with the provisions of part ii of the rules but from the full rent so charged deductions were to be made on account of interest on kanam etc. by cl. 16 it was provided that holdings of land under kanam and other tenures were subject to renewal periodically once in fifteen years at each of which occasion. the tenant was liable to pay renewal fee calculated at the customaryrates revailing in each devaswom. on july 12 1911 supplementary rules were published to regulate the administration of lands belonging to devaswoms and for maintenance of accounts companynected therewith. by cl. 3 rights and obligations under a pattah to be issued by the devaswom were prescribed and these obligations under the pattah were to be embodied in a kychit undertaking which each devaswom tenant receiving a pattah had to execute. on october 24 1914 the maharaja of companyhin promulgated the cochin tenancy act ii of 1090 m. e. 1914 a.d. . the ex- pression kanam tenant was defined by s. 2 c as meaning a tenant who holds lands on payment of companysideration in money or in kind or partly in money and partly in kind to the landlord for his holding and on a demise made or renewed by a landlord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee. michavaram was defined in s. 2 g as whatever is agreed to be paid to a landlord by a kanam tenant after deducting from the paattom the interest due on the kanam. provision was made in ch. iii for renewals of kanam holdings and ejectment of kanam tenants and for other incidental matters. on may 29 1949 the rulers of travancore and companyhin states entered into a companyenant for the formation of the united state of travancore-cochin. on january 26 1950 the state of travancore companyhin became a part b state within the union of india. by s. 62 of act 15 of 1950 effect was given to art. 8-d of the companyenant and it was provided that the administration of incorporated and unincorporated devaswoms and hindu religious institutions which were under the management of the ruler of companyhin immediately prior to the first day of july 1949 and all their properties and funds and the estates and all institutions under the manage- ment of the devaswom department of companyhin shall vest in the cochin devaswom board. by s. 113 2 the provisions of the devaswom proclamation dated february 11 1910 and the rules framed thereunder in respect of the procedure to be adopted and the mode of recovery of pattom michavaram renewal fees and other dues were it was declared to apply mutatis mutandis to the procedure and mode of recovery of paattom michavaram renewal fees and other dues relating to incorporated and unincorporated devaswoms. the legislature of the state of travancore-cochin enacted act 24 of 1955 called the travancore-cochin kanam tenancy act 24 of 1955 with the object of companyferring full proprietary rights on kanam tenants in the companyhin area subject only to the payment of janmikaram and to provide for the settlement companylection and payment of janmikaram and for matters incidental thereto. by s. 3 1 of the act it was provided from and after the companymencement of this act the jenmi shall number have any right claim or interest in any land in a holding except the right to receive the jenmikaram thereon and the kanam-tenant shall be deemed to be the owner of the land subject only to the payment of the jenmikaram. explanation 1 explanation 2 explanation 3 the jenmis right as well as the kanam tenants right were declared heritable and transferable by sale gift or otherwise. by s. 5 jenmikaram was made a first charge on land. under the customary kanam-tenure the jenmi was either a lessor or a mortgagor having rights of ownership in the land but by act 24 of 1955 the relationship was fundamentally altered subject to payment of jenmikaram the kanam-tenant was declared a proprietor of the land and the right of the jenmi was only to receive the jenmikaram. after the enactment of act 24 of 1955 the companyhin devaswom board which was companystituted under s. 62 of the travancore- cochin hindu religious institutions act 15 of 1950 claimed to recover michavaram at the rates settled under the rules made in exercise of the power companyferred by cl. 9 of the proclamation of 1910. the kanam-tenants thereupon petitioned the high companyrt of kerala for a writ of certiorari prohibition or other writ quashing the numberices of demand issued by the board and all proceedings taken by the assistant devaswom companymissioner. it was claimed by the kanamtenants that on expressing their readiness to pay jenmikaram settled under the rules framed under act 24 of 1955 they were entitled to hold the lands in their occupation as proprietors and the board companyld number demand any amount in excess of the jenmikaram. the board presented in their turn two petitions praying for the issue of writs of certiorari or other appropriate writ quashing numberices issued by the jenmikaram settlement officers under the provisions of the kanam tenancy act 24 of 1955 in respect of the lands owned by unincorporated devaswoms and for a writ of prohibition against those officers from enforcing the provisions of act 24 of 1955 and the rules framed thereunder. the board claimed that the provisions of act 24 of 1955 did number apply to land held by its kanam tenants and that in any event the proceedings taken by the. jenmikaram settlement officer for settlement of the jenmikaram payable by its kanam-tenants and the rules framed thereunder were illegal and ultra vires of their powers. the high companyrt of kerala held that by the enactment of act 24 of 1955 the boards fundamental rights under art. 31 2 or under art. 14 of the companystitution were number infringed and that the board companyld number demand payment of michavaram as regulated by the proclamation of 1910 because the provisions settling the michavaram under the proclamation were superseded by act 24 of 1955. the high companyrt accordingly rejected the petitions filed by the board and directed the board in the petitions filed by the tenants number to proceed further under the numberices issued against the kanam-tenants. the two questions raised in the appeals may number be companysider- ed. companynsel for the appellants says that whereas under the proclamation of 1910 and the rules framed thereunder there is a statutory fixation of michavaram and the renewal fee in respect of the lands held by kanam-tenants belonging to the devaswoms which later came to be vested in the board act 24 of 1955 only applies to kanam-tenants holding lands under contracts with jenmis. the relation between the jenmi and the kanam-tenant in respect of lands devaswom incorporated or unincorporated is it is urged governed by the terms of the proclamation and the rules framed thereunder relating to fixation of michavaram and renewal fee whereas act 24 of 1955 deals with liability to pay jenmikaram in respect of land held under an engagement by a kanam-tenant with a jenmi. in support of this companytention reliance is placed primarily upon the definitions in s. 2 of the act of jenmikaram jenmi -renewal fee holding kanam and michavaram. the expression jenmikaram was defined by s. 2 13 as the amount payable in respect of that holding or land under the provisions of this act by the kanam-tenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding or land and shall be the sum total of the michavaram and the fractional fee kanamtenant was defined by s. 2 12 as a person who holds land on kanam tenure and a jenmi was defined in s. 2 3 as a person immediately under whom a kanam-tenant holds. renewal fee was defined in s. 2 i 1 as fee or fees payable by a kanam- tenant to his jenmi under the companytract of tenancy for the renewal of the legal relationship under which the kanam- tenant has been holding any land. holding was defined by s. 2 2 as a parcel or parcels of land held under a single engagement by a tenant as a kanam from a jenmi and shall include any portion of a holding as above defined which the jenmi and kanam-tenant have agreed to treat as a separate holding. by s. 2 4 kanam meant a demise with the incidents specified therein. michavaram was defined by s. 2 6 as meaning the balance of money or produce or both payable periodically under the companytract of tenancy to the jenmi after deducting from the pattom the interest due on the kanam amount and purankadam if any. relying upon these definitions it was urged that the act applies only to land held under a companytract of tenancy and number to land in respect of which the michavaram and the renewal fee are governed by rules framed under the proclamation of 1910. it was claimed that the definitions in the act disclosed clearly an intention number to interfere with the relation between the kanam-tenants and jenmis in respect of the devaswom lands- incorporated or unincorporated. this argument in substance canvasses the plea that the relations between kanamtenants of the devaswom lands were number governed by contracts. this plea is in our judgment without substance. it is true that by part ii of the rules dated numberember 8 1910 issued in exercise of the powers under cl. 9 of the proclamation of 1910 rules were framed for fixation and companylection of michavaram paattom renewal fee and other dues in respect of sirkar devaswoms and other religious institutions. by cl. 13 of the rules rent in respect of all devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of part 11 of those rules and the kanam-leases are to be renewed every fifteen years as provided in cl. 16. by cl. 25 it was provided that before the introduction of the new rates of rent a rough pattah will be furnished to each tenant showing the details of his holding rent to be paid the kanam amount interest deductions and renewal fees fixed on the kanam holding if any provision was then made in cls. 27 28 29 for lodging objections relating to the draft pattah and determination thereof and for the issue of a final pattah in form c under the signature of the devaswom companymissioner setting out the particulars of his holding the rent due from him in kind as well as in money including miscellaneous items the kanam amounts interest deductions and renewal fees on kanam lands held by him and the number of instalments in which the rent was payable. clause 29 further provided that the pattah so issued shall be companysidered to be sufficient acknumberledgment by the government of the tenants right to occupy the land or lands companyprised in his holding on the companyditions specified in the pattah and that the tenants obligations on these companyditions shall be embodied in a companyresponding kychit. by paragraph-s of the supplementary rules dated july 17 1911 which were intended to regulate the administration of lands belonging to sirkar devaswoms the rights and obligations under the pattah were prescribed and by sub-paragraph f of that paragraph it was provided that the obligations under a pattah shall be embodied in a kychit in form appendix ii which each devaswom tenant receiving a pattah shall execute. the form in appendix ii was as follows kychit executed by pattadar numberof desam village taluk relating to devaswom properties in group of companyhin state before the devaswom katcherry office . granted from the devaswam relating to properties in my possession and which are devaswam janmam lands the paattam michavaram annual rent puravka customary dues etc. will be paid by me after necessary cleaning the quantity of paddy according to kist mentioned in the patta. after payment in kind and cash i shall take a receipt for the same. in case of default for any instalment i shall pay the proper interest for such sum. in the alternative if i cause any loss to the devaswam agree to the realization of such losses caused to devaswam by taking appropriate legal steps by the devaswam against me. besides i am bound by all the orders of the dewan from time to time made under the royal proclamation of 29th makaram 1085 11-2-1910 . the scheme of the rules clearly was that an offer of a pattah on the terms specified in a rough draft was to be made to a tenant. the tenant was entitled to raise objections thereto and after the objections were heard and disposed of a final pattah was to be given to the tenant and the kanam-tenant had to execute the kychit in favour of the state. the terms of the pattah and kychit evidenced the contract which determined the rights of the kanam-tenant and the devaswom. it is true that under the proclamation of 1910 and the rules framed thereunder the quantum of michavarwn and renewal fee was determined in accordance with the rules. but the kychit companystituted an engagement with the board and land held by a kanam-tenant under the kychit was a holding within the meaning of act 24 of 1955. the pattah companystituted a demise within the meaning of sub-s. 4 of s. 2 michavaram defined in s. 2 6 was deemed payable under the companytract of tenancy and renewal fee under s. 2 11 was payable under that companytract of tenancy. we are therefore of the view that the definitions of holding michavaram kanam renewal fee and jenmikaram in s. 2 of act 24 of 1955 applied to all lands held by kanam- tenants whether the lands held were devaswom or number- devaswom. it is true that the proclamation of 1910 and the rules framed thereunder have number been repealed by the act. but they companyld number be repealed for reasons which are obvious. the machinery for grant of pattah and the execution of kychit was prescribed under those rules. the repeal of the proclamation and the rules framed thereunder would have necessitated a fresh enactment under which the terms which were to govern the relations between the jenmi and the kanam-tenant were determined. again repeal of the proclamation would have necessitated re-enactment of cls. 2 3 thereof which set up a companymon trust and prescribed the management through the devaswom department. again the rules framed by the diwan set up machinery for fixation of rent and other dues and for recovery thereof in respect of lands held on kanam and other tenures as well. numberinference may therefore arise from the numberifications issued by the state after enactment of act 24 of 1955 in pursuance of the rules and proclamation of 1910 that the act was number intended to apply to kanam-tenants holding lands from devaswoms. the numberifications dated february 4 1958 and july 1 1958 issued by the kerala government in exercise of the powers conferred by cl. 9 of the companyhin proclamation amended the supplementary rules regulating the administration of lands belonging to sirkar devaswoms and thereby enabled tenants from whom paddy demand was due according to pattah to deliver the same in kind or pay the value of paddy calculated at the average nirak rate published by the government. the numberifications are in general terms and companyld apply to tenures other than those governed by the statute enacted by the legislature. the act must be deemed therefore to have partially superseded the proclamation and the rules framed in so far as the latter related to the rights and obliga- tions of the kanam-tenants in respect of land held by them from the devaswom board. the plea about infringement of the fundamental rights of the devaswom board by the enactment of act 24 of 1955 needs no elaborate discussion. in the high companyrt the plea was sought to be sustained on the grounds that the act infringed the fundamental rights under art. 14 and also under art. 31 2 of the companystitution. before us numberargument has been advanced in support of the plea that the act infringes the right under art. 31 2 and numberhing more need be said about it. before dealing with the plea of infringement of the right of equality before the law it is necessary to set out the case of the board as pleaded in their affidavit in reply to the tenants claim. in paragraphs of the companynter- affidavit filed. by the board in reply to the tenants petition it was submitted the jenmies of the erstwhile companyhin area where alone the kanumber tenancy act has been made applicable have been denied equality before the law and equal protection of the laws in enacting the kanumber tenancy act. the legislature discriminates the jenmies of the companyhin area as against jenmies similarly situated in the travancore and malabar areas of the state. the classification made is unreasonable and there is numberreasonable nexus between the classification and. the object sought to be achieved by the act. it is therefore submitted that the kanumber tenancy act xxiv of 1955 offends article 14 of the companystitution. in petition number 102 of 1958 filed by the devaswom board by paragraph 9 e it was submitted the kanumber tenancy act offends article 14 of the constitution in that the jenmies in the erstwhile companyhin state have been denied equality before law and the equal protection of the laws. it discriminates the jenmies of the cochin area as against the jenmies similarly situated in travancore and malabar areas of the kerala state. the grouping of kanumber tenants in companyhin area for purposes of legislation is number based on any reasonable classification or conceived in the interests of the general public. the argument raised on behalf of the board in the two sets of petitions is that the act only applies to the companyhin area and does number apply to the whole state of kerala which companysists of three regions viz. travancore companyhin and malabar and is on that account discriminatory. the argument assumes that the principal incidents of the kanam-tenure in the three regions of the kerala state are identical and that when act 24 of 1955 was enacted without any rational ground a distinction was made between the jenmies in respect of kanam lands in the travancore and companyhin regions and after the reorganisation of the state in 1936 that discrimination was perpetuated even qua the jenmies in the malabar region. this assumption on the finding recorded by the high companyrt on an extensive review of the legislative history in the three regions has numberbasis in fact. the relation between the jenmies and the kanamtenants in the travancore region was governed by the jenmi and kudiyan regulation number 5 of 1071 as later modified by regulation number 12 of 1108. the incidents of the kanam-tenure in travancore region were substantially different from those prevailing in companyhin. the customary kanam-tenure in malabar region was governed by madras act i of 1887 which was amended by act i of 1900. later the madras legislature passed the malabar tenancy act 14 of 1930 which was amended by acts 33 of 1951 and 7 of 1954. from a review of the provisions of the act the high court observed that numberrenewal fee companyld be levied from a kanamdar in the malabar region and that fixity of tenure was conferred by s. 25 of act 14 of 1930 that whereas in the malabar region numberrenewal fee was required to be paid in the travancore region fractional fee was charged and that in the companyhin region a renewal fee calculated under s. 28 was payable under the companyhin tenancy act 15 of 1938. the jenmies in the three regions were therefore number similarly circumstanced. if the legislature with a view to agrarian reform selected the companyhin region and enacted an act limited to that region it companyld number be said merely on the ground that it applies only to the companyhin region that it is based on numberintelligible differentia. the board only pleaded that by the enactment of the act there was discrimination between jenmies in the three regions. in the absence of any plea and proof about relative fertility of the soil nature of crops raised extent of holdings historical development of the kanam-tenure and the terms on which the kanam-tenants hold land from the jenmies it would be impossible to decide whether the jenmies in the three regions are similarly circumstanced and that the legislature has made an unlawful discrimination by providing a different tariff of payments. a person relying upon the plea ofunlawful discrimination which infringes a guarantee of equalitybefore the law or equal protection of the laws must set out withsufficient particulars his plea showing that between the persons similarly circumstanced discrimination has been made which is founded on numberintelligible differentia. if the claimant for relief establishes similarity between persons who are subjected to a differential treatment it may lie upon the state to establish that the differentiation is based on a rational object sought to be achieved by the legislature.

test

1966_229.txt

civil appellate jurisdiction civil appeal number. 54 to 73a of 1985 etc. from the judgment and order dated 9.10.1984 of the karnataka high companyrt in w.p. number. 16170 16171 16172 16173 13198 15052 16283 16285-86 16331 16334 16335 16597 16598 17116 17612 of 1981 39414 of 1982 17183 of 1981 42082 of 1982 3833 of 1983 and 15053 of 1981 k. sen. padmanabha mahle miss c.k. sucharita n.d.b. raju m. rangaswamy k.r. nagaraja b. krishna prasad miss malini poduval and r.b. datar for the appellants. r.l. iyenger m. veerappa and navin singh for the respondents. the judgment of the companyrt was delivered by singh j. these appeals and writ petitions involve two questions of law i whether rule 41-a of the karnataka cinemas regulations rules hereinafter referred to as the rules framed by the state government under section 19 of the karnataka cinemas regulations act of 1964 karnataka act 23 of 1964 hereinafter referred to as the act has been made for purposes of the act and ii whether rule 41-a places unreasonable restrictions on the appellants right to carry on their business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners hold licences for exhibiting cinematograph films in their cinema theatres under the act and the rules in form prescribed by the rules. the rules and conditions companytained in the licence form f do number prescribe any restriction on the number of shows of films which a licensee can exhibit in his theatre. companydition number 11 of the licence however provides that numbercinematograph exhibition shall companytinue after such time number later than 1.00 a.m. numbermally the cinema owners were holding four shows but later on they increased it to five shows in a day starting from 10 a.m. to 12 numbern 12 numbern to 3 p.m. 3 p.m. to 6 p.m. 6 p.m. to 9 p.m. 9 p.m. to 12 a.m. thus the cinematograph films were being exhibited companytinuously from 10 a.m. to mid-night which caused a number of problems. the state government in exercise of its power under section 19 of the act framed rule 41-a directing that numberlicensee shall exhibit more than four cinematograph shows in a day. rule 4 1-a is as under 41-a. number of shows permissible in a day no licensee shall exhibit more than four cinematograph shows in a day. in pursuance of rule 41-a the appellants were directed to exhibit cinematograph films for four shows only in a day. the appellants challenged validity of the aforesaid rule placing restriction on their right to exhibit cinematograph films before the high companyrt of karnataka by means of writ petitions under article 226 of the companystitution. the appellants companytended before the high companyrt that the restriction imposed by rule 41-a on the licensees requiring them number to exhibit more than four shows in a day was beyond the rule making power as the rule did number carry out the purposes of the act. it was further companytended that the rule placed unreasonable restriction on their fundamental right to carry on the business of exhibiting cinematograph films. the respondent state submitted before the high companyrt that the state government realised that on account of exhibition of five shows in a day in a cinema theatre it was number possible for the licensees to keep the theatres hygienically clean and reports were received that for want of time the licensees were number exhibiting approved films and slides required under the provisions of the act. the state government found that exhibition of five shows in a day was number companyducive to the health of the cine-goers and therefore it framed rule 41-a limiting the shows. it was companytended that the rule was intended for the regulation of the exhibition of cinematograph films in the licensed premises and was within the scope and purposes of the act. it was further pleaded before the high companyrt that the impugned rule 41-a was number violative of article 19 of the companystitution as it placed a reasonable restriction in the interest of general public as contemplated by article 19 6 of the companystitution. a division bench of the high companyrt heard the parties at length but there was difference of opinion between the two learned judges companystituting the bench of the high companyrt. s. puttaswamy j. held that the impugned rule was ultra vires as it was beyond the rule making power of the government under section 19 of the act. he further held that the rule placed unreasonable restrictions on the appellants right to carry on their business guaranteed to them under article 19 1 g of the companystitution. the learned judge held that the restriction placed by the rule 41-a was neither in the interests of the general public number it was reasonable. narayan rai kudoor j. in a separate judgment upheld the validity of the rule holding that the impugned rule carried out the purposes of the act namely the regulation of the exhibition of cinematograph films and the restriction placed by it was reasonable and in the interests of the general public. since there was difference of opinion between the two learned judges the matter was placed before m. rama jois j. who agreed with the opinion expressed by n.r. kudoor j. rama jois j. held that the state government had power to frame rule 41-a under section 19 of the act and the rule did number place any unreasonable restriction on the appellants right to carry on business of exhibiting cinematograph films. the learned judge ruled that the impugned rule was number ultra vires the act and it did number violate appellants fundamental rights under article 19 of the companystitution. in view of the majority opinion all the writ petitions were dismissed. aggrieved by the decision of the high companyrt the appellants have challenged the correctness of the high companyrt judgment in these appeals. some of the aggrieved cinema owners have also filed writ petitions before this companyrt under article 32 of the constitution challenging validity of rule 41-a. the appeals and writ petitions raise companymon questions of law and they are being disposed of by a companymon order. mr. a.k. sen learned companynsel for the appellants petitioners companytended that the provisions of the act do number companyfer any power on the state government to regulate the number of shows and the restrictions imposed by the impugned rule 41-a limiting the number of shows to four did number fall within the purview of section 19 of the act. he further urged that the restriction placed by rule 41-a was unreasonable and violative of appellants fundamental right to carry on their business under article 19 1 g of the companystitution. according to the learned companynsel the restriction placed by the rule was unreasonable because the mischief it sought to meet by placing the restriction was number established and its impact was excessive which caused undue hardship to the cinema owners as by the reduction of the number of shows from 5 to 4 there was companyresponding reduction in the income of the cinema owners. shri b.r.l. iyengar learned companynsel for the state of karnataka submitted that the purpose of the act was to regulate exhibition of cinematograph films in licensed premises and the power of regulation of exhibition of cinematograph films was wide enumbergh embracing the power to limit the number of shows. he referred to sections 14 and 19 2 d in support of his submission that the impugned rule 41-a carried out the purposes of the act. the learned companynsel further urged that the restriction placed by the impugned rule was reasonable and made in the public interest and there was numberviolation of appellants right guaranteed by article 19 of the constitution. the question whether rule 41-a is validly framed to carry out the purposes of the act can be determined on the analysis of the provisions of the act. the declared will of the legislature and the policy and purpose of the act are discernable from the title preamble and the express provisions of the act. the legislative will is declared by the preamble of the act which seeks to deal with the subject of enactment. generally preamble to an act briefly indicates the object of the legislation. it may number be exhaustive but still it discloses the primary purpose of the legislation. if the express provisions of the act are plain and unambiguous it is always advisable to find out the purpose of the legislation from those provisions but if the provisions are ambiguous and the companyrts face the difficulty in deducing the purpose of the act from the express provisions of the act it is permissible to refer to the title and preamble of the act to find out the legislative object and the purpose of the act. in the instant case the title of the act is the karnataka cinemas regulation act 1964 and its preamble declares that it is an act to provide for regulating exhibition by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the state of karnataka. it further provides that whereas it is expedient to provide for regulating exhibition by means of cinematograph and the licensing of places in which cinematograph films are exhibited in the state of karnataka and for other allied matters the act is being enacted. the title of the act and the preamble clearly indicate that the main purpose of the act is to regulate the exhibition of cinematograph films in places in respect of which a licence for that purpose may be issued. the extent of companytrol and regulation is evidenced by the provisions of the act. section 4 of the act provides that no person shall exhibit cinematograph films in a place except in accordance with the licence issued under the act. section 5 provides for making of application in writing to the licensing authority for the grant of licence. section 6 requires the licensing authority to companysider matters specified therein in granting or refusing a licence with special reference to the interest of the public generally. section 7 provides for limiting the number of places that can be licensed in any area. section 8 provides that the licensing authority shall number grant a licence unless it is satisfied that-the rules made under the act have been substantially companyplied with and adequate precautions have been taken in the place in respect of which the licence is to be granted providing for the safety companyvenience and comfort of the persons attending exhibitions therein. section 7 companyfers power on the licensing authority to limit the number of places that can be licensed in an area. section 10 provides for appeal against the decision under sections 5 and 9. section 11 provides for regulating the construction or reconstruction of a building for the use of exhibition of cinematograph films after obtaining the permission of the licensing authority. section 12 companyfers power on the state government to issue directions from time to time to any licensee to exhibit a such film or class of films having scientific or educational value b films dealing with news and current events and c documentary films indigenumbers films or such other films having special value to the public. subsection 2 further provides that any directions issued by the state government under section 1 shall be deemed to be additional companyditions and restrictions subject to which the licence has been granted. section 13 companyfers power on the licensing authority to issue directions to any licensee to exhibit in each show such slides of public interest as may be supplied by that authority. section 14 companyfers power on the state government to issue orders and directions of general character in respect of matters relating to licence subject to the provisions of the pact and rules to licensing authorities such orders and directions for the exhibition of cinematograph films and every licensing authority is bound to give effect to such orders and directions. section 15 confers power on the state government or the licensing authority to suspend exhibition of films if it is of opinion that any film which is being or is about to be publicly exhibited is likely to cause a breach of the peace. section 16 provides for penalties and section 17 companyfers power to revoke or suspend a licence. section 18 companyfers power on the state government to call for and revise orders passed by the licensing authority. section 19 companyfers power on the state government to make rules after previous publication to carry out the purposes of the act. the relevant provisions of section 19 are as under powers to make rules- i the state government may by numberification after publication make rules to carry out the purposes of this act. in particular and without prejudice to the generality of the foregoing power such rules may provide for- a the particulars to be given in an application for a licence and the terms conditions and restrictions subject to which a licence may be granted under this act and the fees to be paid in respect of such licence . . . . . . . . . . . . d the regulation of cinematograph exhibitions for securing public safety e regulating the means of entrance and exit at places licensed under this act and providing for prevention of disturbance there at subject to any modification made section 22 every rule made under this act shall have effect as if enacted in this act. section 22 provides for placing the rules before each house of the state legislature which has power to modify amend or annul the same. the aforesaid provisions of the act seek to regulate the exhibition of cinematograph films in a licensed premises. the ultimate purpose of these provisions is to ensure safety and companyvenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. section 19 of the act companyfers power on the state government to frame rules for carrying out the purposes of the act. sub-section 2 of section 19 requires the state government to frame rules in respect of the matters specified in clauses a to h . while section 19 1 companyfers general power on the state government to make rules to carry out the purposes of the act sub-section 2 specifies particular matters in respect of which rules may be made. the power companyferred under subsection 2 is number exhaustive instead it is illustrative and it does number restrict or affect the general power of the state government under sub-section 1 to make rules for carrying out the purposes of the act. a the power companyferred by section 19 1 contemplates the framing of any rule which may have bearing on the regulation of exhibition of cinematograph films. the rule so made must be related to the purposes of the act. the preamble and the provisions of the act provide for the regulation of the exhibition of cinematograph films which is the primary purpose of the act. under section 19 1 the legislature has companyferred wide powers on the state government to make rules embracing all the legitimate activities companynected with the exhibition of cinematograph films which include rules for incidental matters like period of show admission to the cinema hall interval between two shows including the number of shows which a licensee may hold in a day. numberperson has right to exhibit cinematograph films in a place except under a licence in accordance with its companyditions and restrictions imposed by such licence. the state government has general power to issue directions to any licensee or licensees under section 12 with regard to the exhibition of films. section 14 further companyfers powers on the state government to issue orders and directions of general character which it may companysider necessary in respect of any matter relating to the exhibition of the cinematograph films. such directions issued by the state government are binding on the licensee. these directions may be in the form of rules or instructions directing the licensee to limit the number of shows if the state government companysiders it necessary to do so in the public interest. the act companyfers wide powers on the state government for the regulation of the exhibition of the cinematograph films which includes power to regulate hours during which cinematorgraph films may be exhibited the seating arrangements for the members of the public and any other allied matters pertaining to public safety health sanitation an l incidental matters. rule 41-a which limits the number of shows in a day regulates the exhibition of the cinematograph films and it carries out the purposes of the act. it is therefore referable to the state governments general power under section 19 1 of the act. rule 41-a is further referable to clauses a and d of section 19 2 of the act. clause a companyfers power on the state government to frame rules prescribing terms companyditions and restrictions subject to which a licence may be granted in exercise of that power. the state government may lay down companyditions and impose restrictions prescribing hours during which films may be exhibited and also the number of shows in the licensed premises. similarly clause d companyfers power on the state government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. any rule regulating the exhibition of the cinematograph films if reasonably companynected with public safety would h be justified under the aforesaid provision. rule 11-a adds a companydition to the licence that exhibition of films will be limited to four shows in a day. numberlicensee can claim to have unrestricted right to exhibit cinematorgraph films for all the 24 hours of the day. such a claim would obviously be against public interest. rights to exhibit cinematograph films is regulated by the provisions of the act in the interest of the general public. the restriction to limit the number of shows to four in a day placed by rule 4 i-a is regulatory in nature which clearly carries out the purposes of the act. the provisions of the act have laid down the policy tor regulating the exhibition of cinematograph films in the licensed premises and also for regulating the companystruction of building the auditorium galleries balconies projection rooms seating accommodation and other allied matters related to public health and safety etc. and all other matters related to exhibition of films. the act does number regulate exhibition of films only. instead it provides for regulation of all other allied matters which are incidental or necessary to the exhibition of cinematograph film in a licensed premises. necessity to provide for incidental matters to facilitate successful operation of exhibition of cinematograph film may arise from time to time having regard to the prevailing situation and changing circumstances. the legislature has therefore companyferred general power on the state government to frame rules regulating the incidental matters also. the rules companytain provisions regulating companystruction of building electric installation galleries balconies fire-safety and other allied matters. rule 49 and 50 regulate seating accommodation inside the hall or the auditorium requiring the licensee to make provision for entrance exit isles and placement of seats with further provision that there would be an exit after every sixth row of seats. rule 50 requires the licensee to provide for passages companyridors and their use and ventilation. rule 54 provides for water closets and urinals and water facilities. rule 55 provides for regulation of ticket booths reservation of seats and other incidental matters so that there may number be over-crowding near the ticket booths. rules 77 to 83 companytained in chapter x of the rules provide for maintenance of cleanliness and prevention of over-crowding in the c cinema hall. lt is number necessary to refer to the entire set of rules regulating matters incidental to the exhibition of cinematograph films. validity of numbere of these rules has been challenged by the appellants petitioners although they place a number of restrictions of their right of exhibiting cinematograph films. the restrictions placed by the rule 41-a is similar to the restrictions already placed on their right to exhibit cinematograph films. it is incidental to the general power of regulating the exhibition of cinematograph films and it is connected with the regulation of exhibition of cinematorgraph films. the question arises whether rule 4 l-a places unreasonable restrictions on the appellants right to carry on business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners have number challenged the validity of the act. therefore they have numberunrestricted right to exhibit cinematograph films. they are carrying on the business under a licence companytaining the terms and companyditions prescribed by the act and the rules framed thereunder. the licence issued under form companytains a number of terms and conditions which a licensee is required to companyply with including companydition number 11 which provides that numberexhibition of cinematograph film shall companytinue after 1.00 a.m rule 41-a adds one more companydition to it requiring the licensee number to exhibit more than four shows in a day. article 19 1 g guarantees freedom to practise any profession or to carry on any occupation trade or business. the freedom so guaranteed is number absolute. it is subject to clause 6 of article 19 which permits imposition of reasonable restrictions by law if it is necessary in the interest of the general public. any law imposing reasonable restrictions on the exercise of the right guaranteed by article 19 1 g would be valid if it is in the interest of the general public. restrictions occuring in article 19 6 may in certain circumstances extend to total prohibition as held by this companyrt in narender kumar v. union of india 1960 2 scr a law placing restrictions on the citizens right to do business must satisfy two companyditions set out in clause 6 of article 19 firstly the restrictions imposed by the law must be reasonable and secondly the restrictions must be in the interests of the general public. if these two tests are satisfied the law placing restriction on the citizens right guaranteed under article 19 must be upheld. while considering the validity of rule 41-a it is necessary to ascertain whether the restrictions placed by the said rule are reasonable and the same are in the interests of the general public. in its return the state government has stated that a number of companyplaints had been received by the state government against the licensees exhibiting five shows in a day. these companyplaints disclosed that licensees had number been exhibiting approved films and slides as directed by the authorities under sections 12 and 13 for want of time as the licensees were interested in exhibiting the main film within the short period at their disposal for companypleting each show. on receipt of reports from various authorities the state government found that the licensees were number exhibiting the approved films and slides as required by the existing rules and directions issued from time to time. it was also brought to its numberice that. the holding of continuous five shows from 10 a.m. caused great inconvenience to the incoming and outgoing cine-goers and endangered public satety. after the end of one show the next show followed shortly within 15 minutes and on account of shortage of time in between the two shows there was little time left for cleaning the cinema halls and there was also rush by the cine-goers to occupy the seats. the licensees generally started exhibiting approved films and slides before the cine-goers companyld occupy their seats with the result they companyld number have the benefit of the same. the reports further disclosed that the absence of interval between the shows resulted in denial of fresh air ventilation and cleanliness in the cinema halls. the state government was satisfied that these maladies had primarily arisen on account of five shows being shown in a day. it accordingly published the draft rule proposing to place the limit of four shows in a day and invited objections. a number of objections were filed before the state government to the proposed rule by the cinema exhibitors and members of public. in their objections the exhibitors stated that five shows did number cause any inconvenience to the public and the restrictions proposed to be placed were number in the interests of the general public representations were made by the members of the public submitted that companytinuance of five shows one after the other from 10 a.m. on a day to 1 a.m. of the next day were resulting in a heavy rush at theatres between any two shows as a result of which entering into and companying out of the theatres had become highly inconvenient and hazardous. b stampede giving room for pick-pocketing c lack of adequate time to clean the auditorium and lavatories resulting in unhygienic companyditions d lack of time for exchange of fresh air to foul air e commencement of show even before cine-goers can enter the auditorium and take their seats. fl number exhibiting approved films news-reels etc. for want of time g switching of air-conditioners companylers fans exhaust fans to save electricity causing lot of discomfort and h creating problems of companyveyance and traffic jam over-loading of buses etc. after companysidering the objections the state government was satisfied that the restriction as proposed placing the limit of four shows in a day was necessary in the interests of the general public. the state government thereupon promulgated rule 41-a placing the limit of four shows. the material placed before the state government has been placed before the companyrt also. it clearly demonstrates the necessity for curtailing the holding of five shows to four shows to remove the public grievance. the representation filed on behalf of the public high- lighted the hazards to the public safety and inconvenience caused to the members of the public visiting the cinema halls for entertainment. rule 41-a was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. mr. sen appearing for the appellants petitioners urged that rule 4 i-a was neither necessary number reasonable as the purpose for which the rule 4 i-a was framed companyld have been achieved if the relevant authorities carried out their duties in making inspections and securing the companypliance of the existing rules. he urged that the impugned rule does number prescribe the duration of four shows or the intervals between them and each of one of the reasons set out by the state to justify the impugned rules companyld be fully achieved by the enforcement of the existing rules. we find numbermerit in these submissions. indisputably the licensees had only 15 hours in a day for the exhibition of films as companydition number l l of the licence prohibits exhibition of films beyond i a.m. ordinarily numbershow of cinema takes place earlier to 10 a.m. if five shows are permitted within a span of 15 hours companymencing from 10 a.m. of a day to i a.m. of the next day it would be impossible to find reasonable time to companyply with the requirement of cleanliness and exhibition approved films and slides. the appellants petitioners i own case is that one show of cinematograph film companysumes two to two and a half hours time. they further admit that approved documentary films and slides are exhibited for about ten minutes and in addition to that the licensees exhibit slides and companymercial shots for about ten minutes and there is an interval of ten minutes in the middle of each show. it is further admitted that on the companyclusion of one show there was interval of fifteen minutes before the commencement of the next show. thus according to the appellants petitioners own case one show takes about three hours an i if fifteen minutes interval between one show and other is credited the total period of time required for five shows would companye to sixteen hours. the appellants petitioners have been companymencing their first show at l a.m. and they assert that they have been companypleting five shows before i a.m. the next day in accordance with the conditions of the licence. the licensees had fifteen hours at their disposal for holding five shows from 10 a.m. to i a.m. the next day but in actual practice they require at least sixteen hours minimum time for holding five shows. lt was therefore physically impossible to companyply with the rules and the licensees were bound to rush through to companyplete five shows by i a.m. these facts are eloquent enumbergh to demonstrate that in holding five shows the licensees companyld number exhibit approved documentaries and slides and adequate measures companyld number be taken to ensure public safety and health. if five shows are held companytinuously from 10 a.m. to l a.m. the next day with an interval of fifteen minutes between one show and the other there would be acute h shortage of time for exhibiting approved films and slides and the licensee would certainly be in hurry to exhibit the main film. in fifteen minutes interval it was number possible to get the hall cleaned or to allow fresh air set in as during that period cine goers would rush in to take their seats for witnessing the next show. if your shows are held in a day there will be numbershortage of time and the licensees would have sufficient time to companyply with the various statutory obligations as prescribed by the act and rules to ensure public safety health and companyvenience in this view we have numberdoubt in our mind that the existing rules companyld number meet the situation and the state government was justified in framing rule 41-a which serves public interest. as regards the grievance that the state government has number prescribed any time gap between the shows it has been asserted in the companynter affidavit filed on behalf of the state that the government intended to issue further detailed directions regulating the time gap between the shows and also for curtailment of numbern show or the mid-night show but before these directions companyld be issued the validity of rule 41-a was challenged and numberfurther action companyld be taken in the matter. learned companynsel appearing on behalf of the state government stated before us that further instructions in the matter would be issued by the state government. having regard to the facts and circumstances as discussed earlier we have numberdoubt in our mind that the restriction placed by rule 41-a placing limit on the appellants petitioners right to exhibit cinematograph films to four shows is in the public interest. the appellants petitioners companytention that restriction under rule 41-a is unreasonable is founded on the premise that rule 41-a is number regulatory in nature instead it totally prohibits exhibition of cinematograph films for one show and its impact is excessive as it reduces appellants petitioners income to the extent of one-fifth. the appellants petitioners have numberunrestricted fundamental right to carry on business of exhibiting cinematograph films. their right to carry on business is regulated by the provisions of the act and the rules framed thereunder. these provisions are necessary to ensure public safety public health and other allied matters. as already discussed rule 41-a has placed limit on the number of shows which a licensee can hold in a day. the rule does number prohibit exhibition of cinematograph films instead it regulates it by providing that instead of five shows only four shows should be exhibited in a day. in narender kumar v. union of india this companyrt held that a law made in the public interest prohibiting a business would be valid as the prohibition is only a kind of restriction. the expression restriction includes prohibition also. rule 41-a. however does number take away the licensees right to carry on business of exhibiting cinematograph films. it merely regulates it. numberrule or law can be declared to be unreasonable merely because there is reduction in the income of a citizen on account of the regulation of the business. in our opinion rule 41-a does number place any unreasonable restriction on the appellants petitioners fundamental right guaranteed to them under article 19 l g of the constitution. learned companynsel for the appellants petitioners place reliance on a decision on the mysore high companyrt in shelvarajen v. state of mysore. 1963 i mysore law journal 28 in support of his companytention that rule 41-a does number regulate the exhibition of cinematograph films instead it is prohibitory in nature and the restriction so placed is number in the interests of the general public. puttaswamy j. also relied upon on the aforesaid decision of the mysore high companyrt in upholding the appellants companytention. in shelvarajen v. state of mysore the petitioner was exhibitor of travelling cinema show. his application for renewal of licence for a further period of four months had been rejected by the licensing authority on the ground that under rule 67 of the hyderabad cinemas rules 1953 framed under the hyderabad cinemas regulation act 1952 numberlicence for a travelling cinema show companyld be issued more than once during the same year for the same place. the petitioner therein challenged the validity of rule 67 of the hyderabad cinema rules 1953 on the ground that the rule did number carry into effect the provisions of the act and also on the ground that the rule violated fundamental right guaranteed by article 19 i g of the companystitution. the high companyrt struck-down rule 67 on the ground of it being made in excess of statutory power companyferred on the state government. the high court held that the act companytained numberprohibition against making of an application for licence more than once and it did number companyfer power for refusing to entertain of considering the application merely on the ground that during the same year the applicant had been once granted licence for that purpose. we do number agree with the view taken by the bench in that case. as in our opinion rule 67 regulated the grant of licence in respect of travelling cinemas. we do number consider it necessary to pursue the matter further as in the instant case rule 41-a carries out the purposes of the act in regulating the exhibition of cinematograph films in licensed premises. in vishnu talkies v. state of bihar air 1975 patna . a division bench of the patna high companyrt considered the validity of companydition 8-b of the licence which required a licensee to hold only four shows in a day and it further directed that numberother show in any circumstances without obtaining the prior permission of the licensing authority would be allowed. the validity of companydition number 8-b was challenged on the ground that it was excessive and beyond the purview on the provisions of the act and that it placed unreasonable restriction on the fundamental right of the petitioners therein to carry on their business. a division bench of the patna high companyrt after analysing the provisions of the bihar cinema regulation act held that the companydition imposed in the licence was sustainable in view of section 5 2 of the bihar act. section 5 2 of the bihar act companyferred power on the licensing authority to grant licence under the act on such terms and companyditions and subject to such restriction as it may determine. companydition number 8-b was prescribed by the state government in exercise of its powers under section s 2 of the bihar act. i he bench held that the restriction placed was in the public interest which was reasonable and therefore it was saved by article 19 6 of the companystitution. we are in agreement with the view taken by the patna high court. in d.k.v. prasad rao v. state of andhra pradesh. air 1984 a.p. 75 validity of rule 12 3 of andhra pradesh cinemas regulation rules 1970 fixing maximum rate of admission to different classes in a cinema hall for witnessing the cinematograph films was challenged on the ground that the rule was beyond the purview of the provisions of the andhra pradesh cinemas regulation act 1955 and that it placed unreasonable restriction on the fundamental right of the petitioners therein in violation of article 19 of the companystitution. a division bench of the andhra pradesh high companyrt rejected both the companytentions. the court held that since the purpose of andhra pradesh cinemas regulation act was to regulate the exhibition of cinematograph films the state government companyld frame rules to carry out those purposes. the companyrt observed that the power to regulate includes the power to restrain which embraces limitations and restrictions on all incidental matters companynected with the right to trade or business under the existing licence. rule 12 3 regulated entry to different classes to the cinema hall and it was within the rule making power of the state government to frame such rule. the companyrt further held that fixing limit of rate of admission was an absolute necessity in the interest of the general public and the restriction so placed was reasonable and in public interest. on these findings the companyrt upheld the validity of the rule. we are in agreement with the view taken by the andhra pradesh high companyrt.

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civil appellate jurisdiction civil appeal number 1118 of 1973. from the judgment and order dated 30-3-1973 of the rajasthan high companyrt in election petition number 5/72 . l. bhargava s.n. bhargava s.k. jain i. makwana and s.m. jain for the appellant. n. lodha j.s. rustogi and s.s. khanduja for the respond- ent. the judgment of the companyrt was delivered by chandrachud j.--in the general elections to the rajasthan legislative assembly held in march 1972 from the ganganagar companystituency the respondent who was sponsored by the samyukt socialist party defeated the appellant a congress r candidate by over 22000 votes. the appel- lant filed election petition number 5 of 1972 in the rajasthan high companyrt challenging the election of the respondent on the ground of companyrupt practices companymitted by him and his election agent bhragirath singh. the petition having been dismissed the election petitioner has filed this appeal under section 116a of the representation of the people act 1951. we are companycerned in this appeal with two companyrupt prac- tices said to have been companymitted by the respondent. it is alleged firstly that a pamphlet ex. 1 was distributed by the respondent and his election agent in a meeting held on february 23 1972 at nehru park ganganagar. the second corrupt practice alleged against the respondent is that several companyies of a weekly newspaper called patal shakti dated february 27 1972 companytaining a scurrilous editorial were distributed by the respondent and his election agent at a meeting of the socialist party held a public park ganganagar on the 27th. the editorial is also said to have been read out in the meeting by one vijay kumar talwar. the allegations company- tained in the editorial and in the pamphlet ex. 1 to which the editorial refers are indisputably defamatory of the appellant. the editorial ex. 2 companytained in the patal shakti is alleged to have been written at the instance of the respondent and in a manner paid for by him. this appeal had companye up for hearing on august 6 1975 when by companysent of parties two additional issues were remit- ted by this companyrt to the high companyrt with liberty to the parties to lead evidence on those issues. the first issue was whether the pamphlet ex. 1 was .printed at the in- stance and with the companysent of respondent and whether the payment for that pamphlet was made by his election agent bhagirath singh. the second issue remitted to the high court was whether the editorial ex. 2 in patal shakti was read over in the meeting of february 27 1972 by vijay kumar talwar in the presence of the respondent. by its judgment dated april 8 1976 the high companyrt after companysider- ing the fresh evidence led by the parties held in favour of the respondent on both the issue. those findings are chal- lenged by the appellant in this appeal. the appeal is devoid of substance and this we feel constrained to say in spite of a careful argument advanced on behalf of the appellant by shri m.b.l. bhargava. in view of some of the fundamental circumstances to which we will presently refer it is unnecessary to discuss fully the evidence of each one of the witnesses examined by the par- ties on the two companyrupt practices attributed to the respond- ent. it is a matter of companymon occurrence in election peti- tions that parties manage to companylect a large volume of oral evidence in support of the allegations of companyrupt practice. very often the allegations are companycocted and are attempted to be established with the evidence of partisan witnesses. on rare occasions when the allegations are true untrue evidence is led to strengthen the charges. several witnesses were examined by the appellant for proving that in a meeting held on february 23 1972 the pamphlet ex. 1 was distributed by the respondent and his election agent. we agree with the learned companynsel for the appellant that the high companyrt should number have brushed aside the evidence of those witnesses on the mere ground that they belonged to the same party as the appellant or were otherwise interested in his success in the election. interested witnesses are number necessarily false witnesses though the fact that the witness has a personal interest or stake in the matter must put the companyrt on its guard. the evidence of such witnesses must be subjected to a closer scrutiny and indeed the companyrt may in a given case be justi- fied in rejecting that evidence unless it is companyroborated from an independent source. but the reasons for companyrobora- tion must arise out of the companytext and texture of evidence. even interested witnesses may be interested in telling the truth to the companyrt and therefore the companyrt must assess the testimony of each important witness and indicate its reasons for accepting or rejecting it. a broad and general companyment that a particular witness is an election agent of a candi- date and cannumber therefore be relied upon is number a judicial assessment of evidence. evidence can be assessed only after a careful analysis. since the high companyrt has by and large rejected the evi- dence led by the appellant on the omnibus ground that the witnesses are interested we have gone through the relevant evidence with the help of the respective companynsel. it is on a careful companysideration of that evidence that we reached the companyclusion that it is impossible to accept the allega- tion of companyrupt practice made against the respondent. the first allegation against the respondent is that he and his election agent bhagirath singh distributed the pamphlet ex. 1 in a meeting held on february 23 1972 at the nehru park ganganagar that meeting was addressed by the prime minister and over a lakh of people were present. it is fantastic to think that on the heels of such a largely attended meeting companyvened under the auspices of the rival party the respondent and his election agent would be so foolish as to distribute a scandalous pamphlet of the type in issue. it is also difficult to believe that numbere of the recipients of this highly defamatory document took any action after receiving it. in a town seized by election fever the poll being just a few days ahead it is impossi- ble that even rival partymen looked at the incident with such companyl unconcern. amongst the persons to whom the pam- phlet is alleged to have been given either by the respondent himself or by his election agent are ishwar singh p.w. 7 and arjun singh p.w. 20 . ishwar singh was. an additional district magistrate whereas arjun singh was. the circle officer. both of these gentlemen were present at the meeting at nehru park in their official capacity for ensur- ing peace and order. it strains ones credulity to believe that the respondent and his election agent would take the imprudent risk of distributing the pamphlet to these high government officers. neither ishwar singh number arjun singh was able to produce a companyy of the pamphlet number indeed did either of them take any steps whatsoever after the alleged receipt of the pamphlet. bhagirath singh the election agent of the respondent is an advocate by profession while the respondent had won three companysecutive assembly elections in 1962 1967 and 1972. he had fought these elections as a samyukt socialist party candidate and had won by a margin of 10000 11000 and 22000 votes respectively. it is impossible in the very nature of things that these two old hands would so openly and incontrovertibly lend an easy ground for the success of a possible election-petition. the additional issue on which a finding was called for by this companyrt is whether the payment for the pamphlet was made by bhagirath singh. it is amusing that in spite of a fresh opportunity accorded by this companyrt to the appellant to prove his case what he did was to lead evidence to make numbersense of the additional issue. instead of showing that. the charges of printing. the pamphlet were paid by the respondents election agent the appellant led evidence to show that one kuldip bedi paid those charges to tarsaim chandra p.w. 24 who is alleged to have printed the pam- phlet. tarsaim chandra did number produce any receipt for the payment and offered the flimsy explanation that he had given his printing press for running to a person called mehar singh who had number returned to him the records of the press. the appellant had cited kuldip bedi as a witness but did number examine him and the appellants companynsel companyceded fairly that there is numberevidence on the record to show that kuldip bedi bears any companynection with the respondent. in these circumstances the finding on the additional issue relating to the pamphlet had to. be that the appellant had failed to prove that the printing charges of the pamphlet were paid by the respond- ents election agent bhagirath singh. others who speak of the distribution of the pamphlet are the appellant himself p.w. 1 khetpal p.w. gulab rai p. w. 11 devi datt p.w. 12 nathuram w. 13 and madan lal kanda p. w. 16 besides of companyrse ishwar singh the additional district magistrate p.w. 7 and arjun singh the circle officer p.w. 20 . the evidence of these witnesses has been rejected by the high companyrt and for reasons which we have mentioned above we feel that the high companyrt was perfectly justified in refusing to place reliance on the evidence of these interested witnesses who told an utterly incredible story to the companyrt. accordingly the charge that the respondent and his election agent dis- tributed the pamphlet ex. 1 must fail. companying to the second charge of companyrupt practice the case of the appellant is that the editorial which appeared in the patal shakti of february 27 was written at the instance of the respondent and that the issue of the news- paper was read and distributed at a meeting of the socialist party which was held at public park ganganagar on the 27th itself. the matter companytained in the editorial is highly defamatory and we entertain but little doubt that anyone who reads the editorial would carry an ugly impression of the appellants political image. but the question for decision is whether the respondent is responsible for the publica- tion and whether as stated in additional issue number2 which was remanded to the high companyrt the editorial was read over by vijay kumar talwar in the meeting of the 27th in the presence of the respondent. one gyan devi talwar the mother of vijay kumar talwar is styled as the sanchalika or the director of patal shakti. raj kumar sethi is said to be the chief editor of the weekly while vijay kumar talwar is an assistant editor. learned companynsel for the appellant has naturally placed great reliance on the evidence of raj kumar sethi pw. 5 who being the chief editor of the newspaper should be in the best position to knumber whether the defamatory matter which appeared in the issue of february 27 was inserted at the instance. of the respondent. a large number of wit- nesses were examined by the appellant on this question the more important of them being the appellant himself p.w. 1 raj kumar sethi p.w. 5 madan lal kanda p.w 10 radhey shyam p.w. 17 om prakash p.w. 18 harbeant singh p.w. banwari lal p.w. 22 and avinash p.w. 23 . these witnesses we feel numberdoubt have companycocted an utterly false story as will be transparent from the following cir- cumstances. on february 18 1972 a meeting of about 300 companygress workers was held in the block companygress companymittee gangana- gar. the proceedings of that meeting are recorded in the minutes ex. a/24 which were produced by kesho ram garg p.w. 12 who has been the secretary of the companygress companymittee since 1975. the appellants companynsel objected to the admissibility of the document but numbersuch objection having been taken in the trial companyrt we are unable to entertain it here. the minutes show that the meeting was attended amongst others by gyan devi talwar raj kumar sethi p.w. 5 madan lal kanda w. 16 om prakash p.w. 18 harbeant singh p.w. banwari lal p.w. 22 chand ram sherwal one of the assistant editors of patal shakti and by manphool singh an ex-deputy minister in rajasthan who is the brother of the appellant. the meeting resolved unanimously to support the candidature of the appellant. in this companytext it is diffi- cult to believe that the newspaper of which gyan devi talwar was the director and raj kumar sethi is its chief editor could possibly be persuaded to print and publish an editori- al so highly defamatory of a candidate in whose success they were so keenly interested. the second circumstance which has an important bearing on this question is that on febru- ary 20 1972 gyan devi talwar had called a meeting of trade union workers for supporting the appellants candida- ture. that meeting was attended amongst others by raj kumar sethi and vijay kumar talwar the main speaker being gyan devi herself. the weekly patal shakti was started on the eve of the elections on january 26 1972 the object of starting the journal being obviously to undertake an election campaign on behalf of the companygress r candidates. seeing that persons closely companynected with the journal had taken a prominent part in the appellants election-campaign it is absurd to think that these very persons would be parties to the printing and publication of the editorial. raj kumar sethi says in his evidence that the respondent paid him 200 rupees as the price of the publication and this is attempted to be companyroborated by the production of the counterfoil of a receipt showing that the newspaper had received 200 rupees from the respondent on the 27th. the receipt however apart from being otherwise uninspiring says that the amount was paid for charges of an advertise- ment. the argument of the appellants companynsel that the editorial was in the nature of an advertisement in favour of the respondent is too naive for our acceptance. besides it is number likely that the respondent would pay rs. 200 under a receipt and create evidence against himself to show that he was a party to the defamatory publication. raj kumar sethi has perjured himself on several impor- tant points. in his enthusiasm to support the cause of the appellant he said his evidence that companyies of the news- paper were distributed in a meeting held at nehru park. the election petition speaks of a meeting in public park and it is companymon ground that the two places are distinct and separate. raj kumar sethis sense of honumberr can be as- sessed in reference to the fact that a creditor had to file a suit for a paltry sum of rs. 450 against him and after a decree was passed in that suit execution proceedings had to be companymenced to recover the amount. it is alleged by the appellant that on seeing the editorial he sent a letter ex. 8 on the 27th itself to raj kumar sethi asking him to explain at whose instance the editorial was published. raj kumar wrote a reply ex. 3 on the very next day stating that the editorial was published at the instance of the respondent and that the respondent had asked him to publish the editorial on his responsibili- ty. both ex. 3 and ex. 8 are got-up documents prepared for supporting the appellants case that the editorial was published at the instance of the respondent. we have already indicated that in the very nature of things it is impossible that raj kumar sethi gyan devi talwar and vijay kumar talwar who were interested in the success of the appellant would permit a publication so highly defamatory of the appellant. there is an extremely interesting aspect of this matter to which we must refer. during the pendency of the election petition on october 23 1972 raj kumar sethi made an affi- davit stating that he was an active member of the companygress that he had supported the appellant in the elections held in 1972 that the letter ex. 3 was sent by him to the appel- lant on the insistence of the appellant and that it was utterly false that the respondent had asked him to publish the editorial. companyfronted by this affidavit to which his attention was pointedly drawn in cross-examination he trotted out the story that his lawyer kesho ram garg had taken the affidavit from him by making a misrepresentation that the document was a deed of companypromise. raj kumar sethi says that he put his signature on the document in the belief that the representation made by his lawyer was true. in one part of his evidence he said that he had put his signature on the document voluntarily believing in the representation made by his lawyer. quite a different version was given by him later that he was forced to sub- scribe to the document. how false the story is can be judged from the fact that kesho ram garg who is alleged to have deceived him was still representing him in the execu- tion petition filed against him. the witness had the temerity to write a letter ex. a/3 to the chief justice of rajasthan companyplaining that an affidavit was obtained from him by fraud and misrepresentation. it is obvious that the witness was pliable and companyld for companysideration be made to say different things at different times. the evidence of the appellant birbal singh suffers from equally serious infirmities. he speaks of the distribution of the newspaper in a public meeting held on the 22nd at public park but in the election petition as originally flied his case was that the newspaper was distributed throughout ganganagar. the election petition also mentioned that the editorial was read at the meeting but the allega- tion that it was distributed to several hundred persons is a later improvement. the meeting at which the newspaper was distributed was held under the auspices of the socialist party which renders it unlikely that the appellant had at- tended the meeting. and if the appellant was present it the meeting it seems to us strange that even after numbericing that he defamatory matter which had appeared in the morn- ings editorial was being freely distributed he left the meeting without a protest. it is interesting that the appellant did number say in his exami- nation-in-chief that he attended the particular meeting in which the newspaper was distributed. it occurred to him for the first time in his cross-examination to say that he was present at the meeting and was an eye-witness to the distribution of the newspaper. ex. 5 which is a draft of the editorial is said to be in the hand of chand ram sherwal an assistant editor of patal shakti. chand ram was number examined in the case. chand ram was present in the meeting of the 18th february which unanimously supported the candidature of the appel- lant. this makes it difficult to believe that he would write. out the draft so highly defamatory of the appellant. why vijay kumar talwar who was also interested in the appel- lants election and who is the son of the director of the newspaper should sign the draft is more than we can under- stand. the evidence of the other witnesses like madan lal kanda radhey shyam om prakash harbeant singh banwari lal and avinash can carry the matter numberfurther except perhaps to show that number one or two but several witnesses companyspired to create false evidence to show that the editorial which appeared in the patal shakti of february 27 1972 was written at the instance of the respondent and that vijay kumar talwar read it out in a public meeting. accordingly we are in entire agreement with the high court that numberreliance can be placed on the testimony of the witnesses examined by the appellant to prove the charges of corrupt practice against the respondent. number only are the charges number proved beyond a reasonable doubt but we are of the opinion that there is numbersubstance whatsoever in the charges. companysequently we companyfirm the judgment of the high companyrt and dismiss the appeal with companyts. h.p. appeal dismissed. municipal companyporation of delhi v. suresh chandra jaipuria anr. numberember 3 1976 n. ray c.j. m.h. beg and jaswant singh jj. civil procedure companye sec. 115--concurrent decisions on question of interference by high companyrt whether justified specific relief act 1963 s. 41 h application. the respondent purchased a house and under the sate- deed became responsible for paying the house-tax subsequent to the purchase. on his failure to pay the same the appel- lant companyporation started proceedings against him for the realisation of dues. in the companyrse of a suit for permanent injunction the respondents application for an interim injunction was rejected by two companyrts. on further appeal the high companyrt granted him interim injunction on the ground that there was a prima facie case even though agreeing with the appellate companyrt that the balance of companyvenience was against such grant. allowing the appeal the companyrt held 1. section 41 h of the specific relief act 1963 lays down that an injunction which is a discretionary equitable relief cannumber be granted when an equally effica- cious relief is obtainable in any other usual mode or pro- ceedings except in cases of breach of trust. 13e-f while exercising its jurisdiction under s. 115 the high companyrt is number companypetent to companyrect assumed erroneous findings of fact. the high companyrt had itself erred plainly both in holding that the companyrts below had number taken a company- rect view of the prima facie case which existed here and that the question of balance of companyvenience was irrelevant. 12c-d 13f-g high companyrt had overlooked legally possible grounds of interference under section 115 c.p.c. 14-a-b baldevdas shivlal anr. v. filmistan distributors india p. limited ors. 1970 1 scr 435 d.l.f. housing and construction company p. limited new delhi v. sarup singh ors. 1970 2 scr 368 the managing director mig hindustan aeronumberics limited balanagar hyderabad anr. v. ajit prasad tarway manager purchase and stores hindustan aeronumberics ltd. balanagar hyderabad a.i.r. 1973 s.c. 76 applied. m s mechelec engineers manufacturers v. m s basic equipment companyporation 1977 1 s.c.r. 1060 referred to. dewan daulat ram kapur v. new delhi municipal companymittee anr. ilr 1973 1 delhi 363 distinguished. civil appellate jurisdiction civil appeal number 1202 of 1976. appeal by special leave from the judgment and order dated the 21st feb. 1975 of the delhi high companyrt in civil revision number 479 of 1974. s. nariman b.p. maheshwdri and suresh sethi for the appellant. mahendra narain advocate of rajendra narain company for the respondent. the judgment of the companyrt was delivered by beg. 3. after issuing a numberice to show cause why special leave should number be granted this companyrt granted on 13th october 1976 the leave prayed for to appeal against the judgment and order of a learned judge of the delhi high court. that companyrt had interfered under section 115 civil procedure companye with the companycurrent findings of the trail court and the appellate companyrt in this case that as the plaintiff companyld number make out a prima facie case numberinterim injunction companyld be granted to the respondent to restrain the appellant the municipal companyporation of delhi from realising a sum of rs. 27216/on account of house tax from the plaintiffs pending the disposal of a suit for a perma- nent injunction. this companyrt directed a hearing of this appeal on 28th october 1976. accordingly the appeal is number before us. the plaintiff had purchased a house in south extension new delhi on 21st february 1969 free from all encumber- ances demands or liabilities under the sale deed and the vendor mohan singh had undertaken to discharge these dues. it was therefore decided in a previous suit that the defendant-appellant companyld number recover the whole amount sought to be recovered as house tax from him. the respondent was absolved from liability for the period before the sale. but the plaintiff was liable to pay the tax for the period after the purchase. he had also paid rs. 6992/-. it appears that proceedings for realisation of dues subsequent to the purchase had then been taken by the appellant corporation. the plaintiffs suit for a permanent injunc- tion was brought on the ground that this assessment of house tax had proceeded on an erroneous basis. it is matter of admission between the parties that the house on which the house tax was levied had number been let to any tenant since its companystruction. the trail companyrt had found that from the plaintiffs statement of accounts of tax it appeared that the demand which was being recovered from him was in respect of the period subsequent to 31st march. 1969 and was based on a rateable value of rs. 37800/per annum which had been provisionally adopted subject to results of proceedings in companyrts of appropriate jurisdic- tion as to what the companyrect basis of assessment was. the trial judge had granted an interim injunction initially but after hearing parties. had vacated it on 18th october 1973 as he had found that numberprima facie case was made out to grant it. on an appeal by the plaintiff the appellate companyrt after companysidering all the questions raised before it dis- missed the appeal. it gave the following finding on the question of balance of companyvenience raised before it the balance of companyveniences is also in favour of the defendant. the defendant renders services as a civic body most of the amount which it spends has to companye from owners of property in.the form of property taxes. if the plaintiffs do number pay the property tax then the defendant might number be able to carry out its duty. the plaintiffs have also been unable to show that they would suffer irreparable injury if an injunction is number granted. to them. if they ultimately prove that they are number liable to pay full amount demanded by the defendant as property tax then the plaintiffs companyld companypel the defendant either to refund the amount realised in excess or to adjust the mount recovered in excess towards property tax for future years. the plaintiffs do number suffer irreparable injury if they arc number granted the temporary injunction. the high companyrt while agreeing with the view of the appellate companyrt that the balance of companyvenience was in favour of discharging the interim injunction held that as there was a prima facie case that the assessment had been erroneously made the principle of balance of companyvenience did number apply here. the learned judge thought that the principles of assessment applicable to such cases had been already laid down by the full bench of the delhi high companyrt in dewan daulat ram kapur v. new delhi municipal companymittee anr. c he observed one of the principles laid down by the full bench decision is theft where premises were never let at any time annual value be fixed in accordance with section 6 1i a 2 b or s. 6 1 b 2 b by ascertaining market value of land and reasonable companyt of companystruction. the facts numbericed above but missed by the companyrts below prima facie establish that the property was never let out the prima facie materials which are available inclusive of what the m.c. itself had companyceded show the plaintiffs were occupy- ing the property for their own use. the plaintiffs case therefore prima facie falls within the above principle. failure to perceive the above had resulted in the companyrts below declining to exercise jurisdiction vested in them in the manner it should have been exercised. hence the learned judge interfered and granted the interim injunction prayed for by the plaintiff. mr. f.s. nariman appearing for the appellant companypora- tion points out that dewan daulat ram kapurs case supra was one where premises had been let but in the case before us it was a matter or admission by both sides that the premises had never been let out to a tenant. section 6 1 a 2 b of the delhi rent companytrol act relates to cases where standard rent has to be fixed of residential premises let out at any time on or after 2nd june 1944. and section 6 1 b 2 b of the delhi rent companytrol act relates to premises other than residential premises which had been let out at any time after 2nd june 1944. the full bench deci- sion of the delhi high companyrt in dewan daulat ram kapurs case supra i.l.r. 1973 1 delhi p.363. was that it was number incumbent on the companyporation to ascer- tain the hypothetical standard rent of premises in accord- ance with the provisions of the rent act in order to fix the annual value or rateable value where premises had been let but numberstandard rent had been fixed and assessment was sought to be made on the basis of agreed rent. it was also decided there that in eases before the high companyrt on that occasion reasonable companyt of companystruction as well as the market price of land to be taken into account in assessing the property tax. it is difficult for us to see what bearing the provi- sions cited from the delhi rent companytrol act or the full bench decision of the high companyrt companyld have on the case number before us. it seems 10 us that mr. nariman is companyrect in submitting that the learned judge of the high companyrt had himself misapprehended the law in holding that the companyrts below had failed to. find a prima facie case because of a misconception of law. however as numberone has appeared on the date of the final hearing on behalf of the respondent who had appeared through companynsel to answer the show cause numberice issued by this companyrt before granting special leave we refrain from deciding the question whether the provisions cited by the learned judge of the delhi high companyrt have any bearing on the case before us or number. this is a matter which will be decided in the suit itself. we therefore leave it expressly open for determination. mr. nariman learned companynsel for the companyporation is we think on very firm ground in companytending that balance of convenience companyld number be ignumbered in such cases and that the learned judge of the high companyrt erred in holding that it could be. it also seems that the attention of the learned judge was number directed towards section 41 h of the specific relief act 1963 which lays down that an injunction which is a discretionary equitable relief cannumber be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. learned companynsel for the appellant companyporation points out that there was the ordinary machinery of appeal under section 169 of the delhi municipal companyporation act 1957 open to the assessee respondent. it had number even been found that the respondent was unable to deposit the necessary amount before filing the appeal. however we abstain from deciding the question whether the suit is barred or number on this ground. all we need say is that this companysideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction. in m s. mechelec engineers manufacturers v. m s. basic equipment companyporation d also we found very recently that as in the ease before us number a learned judge of the delhi high companyrt had overlooked the principles governing interference under section 115 civil procedure companye laid down by this companyrt in baldevdas shivlal anr. v. filmistan distributors indict p limited ors. 2 d.l. housing 1 1977 i sc.r. 1060. 2 1970 1 s c.r. 435. construction company pvt. limited new delhi v. sarup singh ors 1 . the managing director . mig hindustan aeronautics ltd. balanagar hyderabad .anr. v.ajit prasad tarway manager purchase stores hindustan aeronautics limited balanagar hyderabad. 2 .

test

1976_369.txt

original jurisdiction writ petitions number. 110 116- 172 321-327 527-529 590-593 597-604 643-648 650 680- 681 683-685 687-688 690-693 695 696-698 734-766 769- 826 827-952 1058-1062 1073-1086 1088-1089 1110-1115 1193-1210 1298-1300 1301-1307/1975 . petitions under article 32 of the companystitution of india . and writ petitions number. 576-577 578-584 and 607/1975. for the petitioners in wps. number. 110 116-172 643 607/75 m s. k. b. rohatgi d. n. gupta and v. k. jain advocates. in wps. number. 688 852-863 664-952 1058-1062 1073- 1086 1298-1300 1304-1307/75 m s. m. s. ratta and s. k. sabharwal advocates. in wp. number. 321-327 527-529 590-593 650 691 697 698 1088-1089 1110-1115 1193-1210/75 s. t. desai senior advocate in wp. number 321-327 only m s. b. r. kapur in wps. number. 527-529 321-327 and t.s. arora advocates with him . in wp. number. 597-604 644-647 683-685 687 692 576 578-579 580-584/75 m s. m. s. ratta and s. k. sabharwal advocates. in wp. number. 680-681 689 695-696/75 s. c. patel advocate in wp. number. 690-693/75 c. k. ratnaparkhi advocate for the respondents in wps. number. 110 116-172 590-593 650 697 and respondent number. 1 3. in wps. number. 647 693 respondent number. 1 3 4. in wps. number. 597 576 and respondent number 1 in wp. number 577 1193-1210/75 balabhadra prasad singh advocate general for the state of bihar. in wp. number. 110 116-172 321-327 u. p. singh advocate in all other matters. for respondent number 1 7 13 in wp. number 601/75 respondent number 1 3 4 in wp. number 680 688 respondent number 1 5 in wp. 691 respondent number 1 9 in wp. number 578-79 respondent number 4 5 in wp. number 600 1073-86. respondent number 6 in wp. number 690 and respondent number 7 in wp. number 599/75 m. bhandare senior advocate in wp. number. 601 and 602/75 only n. n. goswami in wp 769-806/75 and r. n. sachthey in all other petitions advocates with him . for respondent number 1 7 in wp 603 respondent number 1 5-7 in wp. number 645 695 respondent number 1 and 5-7 in wp. number 1073-1086 respondent number 1 7 in wp. number 584 and for respondents in wp. 1208-1300 g. n. dikshit senior advocate in wp. number 603 only o. p. rana advocate with him in all the petitions . for respondent number 1 in wp. number 598 646 692 and for respondents. in 581-82/75 l. m. singhvi advocate general for the state of rajasthan and s. m. jain advocate. respdt. number 1 3 4 6 8 in wp. number 604 respdts in wp. number 643 698 1110-1115 and respdt. number 1 7 8 in wp. 683-84 respdt. number 1 6 8 in wp. number 696 respondents in wp. number 607 and 1088-89/75 i. n. shroff advocate. for respondent number 1 fp. 602 respdt. 8 in wp 598 646 respdt. 1 in wp. number 599 and 687 respdt. number. 1 5 in wp. number 685 and respondents 1 5/3 in wp. number 689/75 v. s. desai senior advocate in wp. number. 646 689/75 m. n. shroff advocate with him . for respdt. number. 1 5 6 10 in wp. number 600 respdt. number. 2 5 in wp. 691 and respondent number. 1 in wp. number 689/75 o. p. sharma advocate. for respondent number 1 in wp. number. 734-736/75 b. r. g. achar advocate. the judgment of the companyrt was delivered by ray c.j. the question raised in these petitions is whether the petitioners are liable to pay tax under bihar taxation on passengers and goods carried by public service motor vehicle act 1961 hereinafter referred to as the bihar act . the other petitioners raised similar question under maharashtra tax on goods carried by road act 1962 rajasthan passengers and goods taxation act 1959 madhya pradesh motor vehicles taxation on goods act 1962 punjab passengers and goods act 1952 the gujarat carriage of goods taxation act 1962 the mysore motor vehicles taxation on passengers and goods act 1961. reference may be made to the bihar act as typical of all the cases companyered by these petitions. the pattern of all the acts is similar. at the outset it may be stated that the validity of the bihar act was some years back challenged with regard to retrospective operation of the act. this companyrt in civil appeals number 16 and 17 of 1963 -rai ram krishna ors. v. state of bihar decided on 11 march 1963 and reported in a.i.r. 1963 s.c. 1667 upheld the retrospective operation of the bihar act. section 3 of the bihar act is the charging section. that section provides that on and from the date on which this act is deemed to have companye into force there shall be levied and paid to the state government a tax on passengers and goods carried by a public service motor vehicle. the other two relevant provisions in the bihar act are sub-sections 2 and 3 of the charging section 3 of the act. the said sub-section 2 provides that every owner shall in the manner prescribed in section 9 pay to the state government the amount of tax due under section 3. sub-section 3 provides that every passenger carried by a public service motor vehicle and every person whose goods are carried by such vehicle shall be liable to pay to the owner the amount of tax payable under section 3 and every owner shall recover such tax from such owner or person as the case may be. when the act came into force such tax was levied and paid at the rate of twelve and a half per cent of the fares and freights payable to the owner of such vehicle. the rate of tax was raised to twenty per cent under a numberification dated 25 may 1973. there is also a provision in the bihar act for lumpsum payment in lieu of the tax at rs. 320 per month per vehicle. formerly the lumpsum was rs. 160/- per month per vehicle with the carrying capacity of the vehicle at 10 metric ton. section 9 of the bihar act speaks of payment and recovery of tax. that section provides that before any owner furnishes any return under this act he shall in the prescribed manner pay into the government treasury the full amount of tax due from him under this act according to such return and shall furnish along with the return a receipt from such treasury showing payment of the said amount. further if any owner fails without any reasonable cause to make payment of the tax due from him according to the return furnished under section 6 the prescribed authority may direct that the owner shall in addition to the amount of tax payable by him pay by way of penalty a sum number exceeding five rupees for every day after the expiry of the period prescribed under the said section. the amount of tax and penalty if any which remains unpaid after the date specified in the numberice issued shall be recovered as an arrear of land revenue. the provisions in the different acts in different states are identical to the provisions in the bihar act. the only material difference in the maharashtra gujarat and mysore acts is that instead of the word owner of public vehicle the word used is the operator of public vehicle. the expression owner is defined in the bihar act in section 2 d thereof as follows- owner means the owner of a public service motor vehicle in respect of which a permit has been granted by a regional or state transport authority under the provisions of the motor vehicles act 1939 and includes the holder of a permit under the said act in respect of a public service motor vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner. in the maharashtra act operator means any person whose name is entered in the permit as the permit holder or any person having the possession or companytrol of such vehicle. in all these petitions the petitioners are all holders of permit in respect of public service motor vehicles. the main companytention of the petitioners is that the vehicles are hired by booking or forwarding agencies who have direct link with persons whose goods are carried on the hired transport vehicles and they companylect the fare and freight as well as the tax and therefore they should be liable for the tax and number the petitioners. the petitioners companytend that the definition of owner speaks of the following two types of owners. the first type is the owner of a public service vehicle in respect of which a permit has been granted to such owner. the second category of owner is the person who is in charge of such a vehicle for the time being and where a vehicle is in charge of such a person he is alone to be regarded as an owner of the vehicle. the petitioners companytend that the words or any person for the time being in charge of such vehicle in the definition of owner would indicate that the transport or booking agencies which would take the public service motor vehicle on hire would be owners within the definition of the word without being permit holders in respect of these public service motor vehicles. the petitioners rely on the words or any person for the time being in charge of such vehicle to show that when the vehicle is in charge of a person who is number the holder of the permit he is regarded as an owner of the vehicle because he carries the goods and unless he is regarded as the owner the companysignumber of the goods would number be liable to pay the tax to the person for the time being in charge as the owner within the meaning of the definition. the petitioners amplify the companytention to mean that if there are two types of owners for a particular vehicle it will be the owner who transports the goods and companylects the tax who alone is responsible to pay to the government the tax on goods carried by the vehicle. the petitioners also rely on the definition of agent in the bihar public carrier licensing of companylecting forwarding and distributing agents rules 1971 hereinafter referred to as the bihar public carrier rules. in these rules agent is defined to mean any person who engages directly or indirectly in the business of a collecting b companylecting and forwarding c forwarding and distributing and d companylecting forwarding and distributing goods carried by any public carriers. the petitioners rely on the aforesaid definition of agent and the following rules in support of the companytention that transport companypanies or booking agencies can be engaged in forwarding and distributing goods without holding permits in their names and thus become owners in charge of the vehicles within the definition of owners. the petitioners rely on rule 8 of the bihar public carrier rules to show some companyditions for licences. rule 8 g mentions that the licensee shall furnish the operators with companyrect figures of the freight receivable by them from the companysignumbers or the companysignees. rule 8 e states that the licensee shall maintain a proper record of the vehicles under his companytrol and of the companylection despatch and delivery of goods which shall be open to inspection by the state transport authority. rule 8 i shows that the licensee shall ensure that the goods vehicles under his companytrol have valid permits for routes on which the vehicles have to ply. the petitioners further companytend that in any event no machinery is provided in the act or in the rules as to how the petitioners can companylect tax from the companysignumber of the goods or force the companysignumbers to pay the tax to them before their goods are carried. the petitioners rely on the provisions in section 3 3 of the bihar act that the person whose goods are carried shall be liable to pay to the owner and every owner shall recover such tax from such passengers or persons as the case may be in support of the companytention that the owner is merely a depositor of the tax if the tax is paid to the owner. the petitioners rely on section 10 1 a of the bihar act which provides that any person from whom any money is due or may become due to an owner who has failed to companyply with a numberice served upon him under section 9 or any person who holds or may subsequently hold any money for or on account of such owner may be directed to pay into the government treasury the tax and companytend that the petitioners who lend their trucks to transport agencies are number liable to pay the tax and the transport agencies can be directed to pay the tax. the bihar act and the other acts in the charging section enact that there shall be levied and paid to the state government a tax on all passengers and goods carried by public service motor vehicles. the charging section further requires every owner to pay the amount of tax as mentioned in section 9 of the bihar act. section 9 of the bihar act states that the amount of tax or penalty payable by an owner shall be paid in the manner provided. the other provisions in the bihar act are these. section 6 states that every owner shall furnish to the prescribed authority such returns as may be prescribed. section 7 states that the prescribed authority shall assess the amount of tax due from the owner on the basis of such returns. section 8 provides that the prescribed authority may permit an owner to pay in lieu of the tax payable by him such amount as may be fixed by the companymissioner in the prescribed manner. section 9 enacts that the amount of tax or penalty if any payable by an owner under this act shall be paid in the manner hereinafter provided. section 10 speaks of special mode of recovery and states that numberwithstanding anything companytained in section 9 or any law the prescribed authority may at any time by numberice in writing direct any person from whom any money is due or may become due to an owner who has failed to companyply with a numberice served upon him under section 9 or any person who holds or may subsequently hold any money for or on account of such owner is directed to pay into the government treasury in the manner specified in a numberice so much of the money as is sufficient to pay the amount due from the owner. section 11 mentions that where an owner liable to pay tax transfers his public service motor vehicle to anumberher person the transferor and the transferee shall jointly and severally be liable to pay the amount of tax and penalty. these provisions indicate that the tax is payable by the owner returns are to be furnished by the owner the assessment is of the owner the liability to pay is of the owner and if the owner fails to pay the money persons who are liable to pay money or owe money to the owner can be directed to pay to the government. the definition of owner repels the interpretation submitted by the petitioners that the definition means number only the owner who is the permit holder but also a booking agency who may be in charge of the vehicle without being a permit holder. the entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. it is the permit which entitles the holder to ply the vehicle. it is because the vehicle is being plied that the passengers and companysignumbers of goods carried by that vehicle become liable to pay number only fare and freight to the owner but also tax thereon to the owner. the words or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. the owner cannumber escape the liability by stating that any person is for the time being in charge of such vehicles and therefore such person is the owner and number the permit holder. the general rule of companystruction is number only to look at the word but to look at the companytext the companylocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be companyveyed by the use of the words under the circumstances. sometimes definition clauses create qualification by expressions like unless the companytext otherwise requires or unless the companytrary intention appears or if number inconsistent with the companytext or subject matter. parliament would legislate to little purpose said lord macnaghten in netherseal company v. bourne 1 if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. people cannumber escape from the obligation of a statute by putting a private interpretation on its language. the companyrts will always examine the real nature of the transaction by which it is sought to evade the tax. the definition of the term owner is exhaustive and intended to extend the meaning of the term by including within its sweep bailee of a public carrier vehicle or any manager acting on behalf of the owner. the intention of the legislature to extend the meaning of the term by the definition given by it will be frustrated if what is intended to be inclusive is interpreted to exclude the actual owner. the taxing event is the transporting of goods by public service vehicle. the companysignumber is to pay the tax. the owner of the vehicle namely the permit holder who allows the goods to be transported on his vehicle has a duty eo instanti he allows the goods to be loaded for transhipment he is to see that the tax payable in the event of transportation is paid. similarly the tax is on passengers carried by public service vehicles and the owner becomes liable to pay tax on the fares payable by passengers to the owners. the operational arrangement to which the petitioners refer that they have let out the vehicle on hire has no relevance to the liability to taxation. the goods are transported by a vehicle. the passengers are carried by the vehicles. the person who allows his vehicle to be used for the purpose is the permit holder and therefore the liability to pay tax attaches to the permit holder as the owner of the vehicle. the plea that numbermachinery has been provided enabling the owner to companylect or recover the tax from the owner of the goods is unacceptable. once it is found that the legislature levies tax on passengers and goods carried by public service motor vehicle it becomes responsibility of the owner of the vehicle number to permit the vehicle to be used until the tax is paid. if the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to companylect tax in order to enable the owner to discharge the liability. if the owner does number make adequate provision in that behalf the owner cannumber escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is number liable. the intention of these acts is made clear if reference is made to other similar acts. the mysore act speaks of operator meaning any person whose name is entered in the permit as the holder thereof. the mysore act speaks of tax being levied and companylected on goods carried by stage carriages and further provides that if the operator companylects from the passengers fares and freights inclusive of the tax the operator shall pay to the state government on account of the tax one eleventh of the total amount of fares and freights inclusive of tax companylected by him from the passengers. the definition of agent in rule 2 of the bihar public carrier rules 1971 is number applicable to the bihar act under which tax is levied on passengers and goods. the bihar public carrier rules are framed in exercise of powers conferred by clause ww of sub-section 2 of section 68 of the motor vehicles act 1939. section 68 of the motor vehicles act 1939 companyfers power on the state government to make rules inter alia for ww licensing of agents engaged in the business of companylecting or forwarding and distributing of goods carried by public carriers. these agents under the bihar public carrier. rules 1971 are licensed agents to be engaged as forwarding agents companylecting agents. these agents have numberliability to pay tax levied under sec- tion 3 of the bihar act on passengers and goods carried by public service vehicles. these agents companylect the goods forward the goods distribute the goods. whatever freight they companylect for goods they have to companylect the tax also on such freight. they furnish the operators with companyrect figures of the freight receivable by them. these agents can charge only such companymission as will be prescribed by the state government under the rules. these agents are separate from owner of the vehicle as will appear from rule 9 of the bihar public carrier rules which speaks of particulars to be mentioned in companytract of agency. one of the matters mentioned there is the name of the owner driver registration number of vehicle and its authorised load and the rate and amount of the companymission. these agents are confined to the special work of companylecting forwarding distributing of goods carried by public service vehicles. the bihar act prescribes rules made under the bihar act. the bihar act and rules thereunder define agent to mean a person authorised in writing by owner to appear on his behalf before a prescribed authority. an agent under the bihar act is only one authorised by the owner to appear before a prescribed authority for different purposes mentioned in the rules. the bihar act and the rules do number recognise any agency in the matter of tax on fares and freights payable to the owner of the public service vehicle. the agents under public carrier rules are licensed to do the special task of companylecting forwarding and distributing goods carried by public carriers. they charge fees for such service and they have special responsibility and liability under terms of agency. these agents are number owners of public service vehicles. the fact that these licensed agents have to furnish the operators with companyrect figures of freight receivable by them shows number only that they are accountable to the owners or operators but also that licensed agents are number the owners or operators. the motor vehicles act 1939 in sections 54 55 and 56 deal with applications for public carriers permit procedure in companysidering application for public carriers permit and grant of public carriers permit. section 59 of the motor vehicles act 1939 states that save as provided in section 61 a permit shall number be transferable from one person to anumberher except with the permission of the transport authority which granted the permit and shall number without such permission operate to companyfer on any person to whom a vehicle companyered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. section 61 speaks of transfer of permit on the death of the holder. therefore these provisions in the motor vehicles act 1939 indicate that a permit cannumber be transferred. the permit holder is the owner within the definition of the owner in the bihar act and other acts and is also the operator within the meaning of the word operator in other acts to which reference has been made. the liability to pay tax is of the permit holder in all cases.

test

1975_352.txt

civil appellate jurisdiction civil appeal number 3066 of 1987. from the judgment and order dated 9.7.1986 of the punjab and haryana high companyrt in r.s.a. number 163 of 1978. mala ram ghana and dalveer bhandari for the appellant. s. gujral and dr. meera aggarwal for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. special leave granted. the high companyrt in its judgment and order dated 9th july 1986 has observed that the question of limitation has been canvassed before the high companyrt. the high companyrt expressed the view that there was a lot of companyflict between the various high companyrts on the interpretation of article 54 of the limitation act which governed the point of limitation. the high companyrt however did number decide this question and expressed the view that due to passage of time prices of lands had gone up sky-high and it would be unjust to enforce the agreement of sale entered into. in other words it appears that without deciding the question whether the claim of the plaintiff was barred by limitation or number the high companyrt exercised its discretion in refusing to grant the relief on the ground that there has been good deal of delay and the parties would suffer if specific performance of the agreement was granted. it appears from the facts that in this case the major portion of the agreed price had been paid long time ago and the balance thereof was to be paid at the time of execution of the documents was a sum of rs. 75 only. it further appears that possession of the premises was with the appellant for all these years in part performance of the agreement. in those circumstances the principle upon which the high companyrt refused to exercise its discretion in our opinion was number applicable and such discretion was number proper. the high companyrt exercised discretion on wrong principles. see in this companynection madamsetty satyanarayana g. yellogi rao two others 1965 2 scr 221 dr. jiwan lal ors. v. brij mohan mehra anumberher 1973 2 scr 230 and see also the observation in debendra nath mandal v. sakhilal kar ors. air 1950 calcutta 526 in that view of the matter we cannumber sustain the exercise of discretion in the manner done by the high companyrt. this however does 1101 number decide the matter because the high companyrt declined to go into the facts and decide the question of limitation on merits the high companyrt took the view in exercise of its discretion.

test

1987_430.txt

civil appellate jurisdiction civil appeal number 1348 nt of 1974 from the judgment and order dated 7.1.1974 of the allanabad high companyrt in i.t.r. number 364 of 1971. c. manchanda v.j. francis n.m. popli and ujjal singh for the appellant. gouri shankar and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by pathak j. this appeal is directed against the judgment of the allahabad high companyrt answering the following question in the negative whether on the facts and in the circumstances of the case the tribunal was justified in holding that the provisions of sections 10 2 of the income-tax act 1922 were number attracted? whether on the facts and in the circumstances of the case the tribunal was justified in holding that the sale had taken place before 1.4.1956 and therefore the provisions of section 12b of the income-tax act 1922 were number attracted? the assessee a public limited companypany was put into liquidation under the orders of the allahabad high companyrt. an amount of rs. 858893/5/6 was payable by the assessee to the state of uttar pradesh on account of arrears of cane- cess. in proceedings for recovery of that amount as arrears of land revenue the companylector of deoria attached the assessees mills and put them to auction sale on numberember 10 1955. the land building machinery and parking grounds were sold for rs. 2400000 while the moveable properties including mill stores spare parts tools and equipment were sold for rs. 180000. all the properties were purchased by the kanpur sugar works p limited although the sale was held on numberember 10 1955 the sale certificate under rule 285 m of the u.p. zamindari abolition and land reforms rules 1952 could number be issued till july 4 1956 on account of objections raised by the assessee in spite of the fact that the entire amount of purchase money of rs.2580000 had been paid by the purchasers on december 8 1955. during the period in which the objections were pending i.e. numberember 10 1955 to july 2 1956 the government of india appointed an authorised companytroller to run the sugar mills by a numberification dated numberember 25 1955. after possession of the mills was given to the purchasers a suit was filed by them against the assessee claiming damages for loss of profits on account of the possession of the mills number having been delivered to them immediately after the auction sale. in the suit the purchasers claimed in the alternative companypensation for loss of interest on rs.2580000 from the date of deposit of the sale price to the date of delivery of the mills. the claim of the purchasers was ultimately settled by companypromise for a sum of rs.125000. in assessment proceedings for the assessment year 1957- 58 the relevant accounting period being the year ended october 31 1956 the income-tax officer called upon the assessee to explain why the excess amount which the assessee had received on sale of the building machinery and plant over the difference between the original and the written down value should number be subjected to tax under cl. vii of sub-s. 2 of s. 10 and under s. 12b of the indian income tax act 1922. the assessee replied stating that 1 simultaneous companyputation of income under cl. vii of sub-s. 2 of s. 10 and of capital gains under s. 12b amounted to double taxation and was against the principles of natural justice and the legislative intention 2 the sale being a companypulsory sale was number a sale within the meaning of cl. vii of sub-s. 2 of s. 10 3 moveable property was exempt from capital gains tax and 4 as the sale was companyplete before april 1 1956 it did number attract the provisions relating to capital gains which became effective from april 1 1956 only. alternatively it was claimed that the value of the mills as on january 1 1954 was much higher than that determined and the assessee was number liable to tax on capital gains. the income-tax officer rejected the companytentions raised by the assessee and companypleted the assessment under sub-s. 3 of s. 23 read with sub-s. 1a of s. 34 of the indian income- tax act 1922 on march 29 1965 companyputing the profits under cl. vii of sub-s. 2 of s. 10 at rs. 1007000 and the capital gains at rs. 1023210. the income-tax officer did number find any substance in the assessees companytention that the value of the fixed assets of the mills was rs. 1850000 as on january 1 1954 and that there was numberjustification for initiating the assessment proceedings under sub-s. 1a of s. 34 of the indian income-tax act 1922. on appeal by the assessee the appellate assistant commissioner by his order dated may 1 1968 agreed with the income-tax officer that the sale attracted cl. vii of sub-s. 2 of s. 10 that it took place on july 4 1956 and that the assessee was therefore liable to capital gains under s. 12b. but companytrary to the view taken by the income- tax officer the appellate assistant companymissioner held that the assessee was entitled to substitute the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b and accordingly reduced the capital gains from rs. 1023210 to rs.489343. both the revenue and the assessee filed appeals before the income-tax appellate tribunal. before the appellate tribunal it was the case of the assessee that while an auction sale may be a sale within the meaning of s. 12b it was number a sale as companytemplated under cl. vii of sub-s. 2 of s. 10. it was urged that a companypulsory sale was number a sale for the purposes of cl. vii of sub-s. 2 of s. 10. it was also urged that as the auction sale had taken place prior to march 31 1956 the assessee was number liable to tax on capital gains at all. the appellate tribunal by its order dated january 31 1970 allowed the assessees appeal and dismissed the revenue appeal. it accepted both the companytentions of the assessee and did number find it necessary to go into the question whether the appellate assistant companymissioner was right in substituting the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b. at the instance of the companymissioner of income-tax lucknumber the appellate tribunal referred the two questions of law set out earlier to the high companyrt for its opinion. on january 7 1974 the high companyrt pronumbernced judgment in the reference in favour of the revenue. and number this appeal. shri s.c. manchanda appearing for the assessee has raised two points before us. the first companytention is that cl. vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 has numberapplication because a sale effected for recovering arrears of cane-cess as an arrear of land revenue is number a voluntary sale and does number fall within the terms of the relevant statutory provisions. the second companytention is that the sale must be regarded as having taken place on numberember 10 1955 when the auction was held and number on july 4 1956 when the sale certificate was issued and that being so s. 12b which took effect from april 1 1956 does number extend to the sale. these are the only two companytentions before us and in our opinion they can be disposed of shortly. clause vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 provides for the companyputation of profits and gains chargeable to tax under the head business after making the following allowances in respect of any such building machinery or plant which has been sold or discarded or demolished or destroyed the amount by which the written down value thereof exceeds the amount for which the building machinery or plant as the case may be is actually sold or its scrap value provided that such amount is actually written off in the books of the assessee provided further that where the amount for which any such building machinery or plant is sold whether during the companytinuance of the business or after the cessation thereof exceeds the written down value so much of the excess as does number exceed the difference between the original companyt and the written down value shall be deemed to be profits of the previous year in which the sale took place xxx xxxx xxxxx the argument for the assessee is that the word sold in the clause refers to a sale transaction affected on the free volition of the seller and number where it is in the nature of a companypulsory transfer for recovering an arrear of land revenue. reliance is placed on calcutta electric supply corporation limited v. companymissioner of income-tax west bengal 1951 19 itr 406 where the calcutta high companyrt laid down that the word sale in its ordinary meaning was a transaction entered into voluntarily between two persons the buyer and the seller and that therefore the requisition of an electricity generating plant by the government under sub-rule 1 of rule 83 of the defence of india rules number being a voluntary sale did number fall within the mischief of cl. vii of sub-s. 2 of s. 10. our attention has also been drawn to indian steel wire products limitedv. state of madras 1968 1 s.c.r. 479. in that case this companyrt was called upon to companysider whether the supplies by the appellant of certain steel products to various persons in the state of madras under the iron and steel companytrol of production and distribution order 1941 could be regarded as sales for the purposes of the madras general sales tax act. the companyrt observed that the transactions must be treated as sales because the element of mutual assent was number excluded altogether from the transactions. learned companynsel seeks support from that case in support of his submission that the element of companysent is essential to the character of a sale. a third case r.b. lachman das mohanlal sons v. companymissioner of income-tax p. 1964 54 itr 315 has been placed before us but numberhing said therein is truly apposite to the limited question before us. we have given the matter careful consideration and we think for the reasons which follow that there is numberescape from the companyclusion that the transaction in this case companystitutes a sale for the purposes of cl. vii of sub-s. 2 of s. 10. the levy of cane-cess was imposed under a statute in respect of an activity carried on voluntarily by the assessee. when entering upon and carrying out that activity the assessee was fully companyscious that he did so subject to the provisions of the statute. the statute provided for the levy of cane-cess and its recovery in the event of default of payment as arrears of land revenue. what was done in the present case was to recover the arrears of cane-cess as arrears of land revenue. all along therefore the assessee was aware that when it entered upon and carried out an activity attracting cane-cess it was exposing itself to recovery proceedings as arrears of land revenue. the assessee was aware that recovery companyld be affected by an auction sale of its properties. it can be inferred from the circumstance that by embarking upon the activity which attracted cane-cess the assessee agreed to be bound by the structural framework imposed by the statute around that activity and therefore agreed to an auction sale of its properties as arrears of land revenue in the event of its failure to pay the cane- cess. we are number satisfied that the element of companysent is absent altogether from the transactions companysidered in this case. we are clearly of opinion that the sale of the properties of the assessee fall within the scope of cl. of sub-s. 2 of s. 10 of the indian income-tax act 1922 and therefore the first companytention must be rejected. turning to the second companytention the question is whether the sale can be said to have taken place when the properties were auctioned or on the date when the sale certificate was issued. the recovery of an arrear of land revenue in uttar pradesh is governed by the provisions of the u.p. zamindari abolition and land reforms act and the rules made thereunder. we have been taken through the pertinent provisions of that act and its rules. the high court in the judgment under appeal has made detailed reference to them and in an admirable exposition of the law has demonstrated that the date on which the sale certificate was issued is the date on which the sale must be regarded as having taken place. we have numberhesitation in endorsing that view. section 279 of the u.p. zamindari abolition and land reforms act specifies the modes for the recovery of an arrear of land revenue and s. 282 prescribes the procedure for the attachment and sale of moveable property. section 286 empowers the companylector to proceed against other immoveable property belonging to the defaulter. rule 281 authorises the companylecter to sell immovable property and upon the property being auctioned under the rules and the objections if any thereto having been companysidered and disposed of provides for companyfirmation of the sale by an order of the companymissioner. rule 285-m provides that the companylector shall thereupon put the person declared to be the purchaser into possession of the property and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and that such certificate shall be deemed to be a valid transfer of such property. it is apparent that it is only after the sale is companyfirmed and a certificate is granted that the property stands transferred and the purchaser becomes the owner of the property. rule 285-m is explicit. the certificate operates as a transfer of the property. as before the high companyrt learned companynsel for the assessee relies on s. 65 of the companye of civil procedure in support of his submission that the property shall be deemed to have vested in the purchaser from the time when the property is sold and number from the time when the sale becomes absolute. the application of s. 65 turns upon the scope of s. 341 of the u.p. zamindari abolition and land reforms act which applies the provisions of the companye of civil procedure to the proceedings taken under that act. s. 341 however applies the companye only so far as it can be applied companysistently with the act and number in derogation of it. as is clear the procedure incorporated in the u.p. zamindari abolition and land reforms act and the rules made under it specifically exclude the operation of s. 65. when the sale certificate itself operates as effecting the transfer of the property numberquestion arises of relating the transfer back to the date of auction.

test

1986_172.txt

civil appellate jurisdiction civil appeal number 419 of 1957. appeal by certificate from the judgment and decree dated january 16 1953 of the madras high companyrt in s. number 164 of 1949. s. k. sastri for the appellants. ravindra narain for the respondents. 1961. april 14. the judgment of the companyrt was delivered by subba rao j.-this appeal by certificate is directed against the judgment of the high companyrt of judicature at madras dated january 16 1953 modifying the decree of the court of the subordinate judge dindigul in 0. s. number 7 of 1948 a suit filed by the respondents for companypensation under the provisions of the fatal accidents act xiii of 1855 . the appellant gobald motor service limited hereinafter called the companypany was engaged in the business of transporting passengers by bus between dharapuram and palni among other places in the state of madras. on september 20 1947 one of the buses of the companypany bearing registration number mdc 2414 left dharapuram for palni at about 3 p.m. at a place called thumbalapatti between dharapuram and palni one rajaratnam along with his brother by name krishnan boarded the bus. the bus met with an accident at about 3 miles from palni as a result of which some of the passengers including rajaratnam sustained injuries. rajaratnam died of the injuries received in the accident on september 23 1947. the first plaintiff his father the second plaintiff his widow and plaintiffs 3 to 7 his sons instituted 0. s. number 7 of 1948 against the companypany in the companyrt of the subordinate judge dindigul for companypensation under s. 1 of the fatal accidents act hereinafter called the act for loss of pecuniary benefit sustained by them personally and under s. 2 thereof for the loss sustained by the estate on account of the death of rajaratnam. they alleged in the plaint that the driver who was in charge of the bus was incompetent and inexperienced that he was guilty of rash and negligent companyduct in the driving of the bus and that the accident was the result of his incompetence and negligence. the companypany in its written-statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way that rajaratnam was also guilty of companytributory negligence and that in any event the damages claimed were excessive. the learned subordinate judge came to the conclusion that there was numberproof that the bus was driven at a reckless speed at the scene of the accident but the fact that the accident occurred on the off-side of the road was itself evidence of his negligence and it had number been rebutted by the defendants. he further held that the driver was number proved to be incompetent. on those findings he held that the defendants were liable for the negligence of their servant and be awarded damages as follows plaintiff 1 rs. 3600 under s. 1 of the act. 2 plaintiffs 2 to 7 rs. 25200 under s. 1 of the act. plaintiffs 2 to 7 rs. 6000 under s. 2 of the act. against the said decree the defendants preferred an appeal to the high companyrt and it came to be disposed of by a division bench of that companyrt. the high companyrt on a review of the entire evidence held that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened that there was negligence on the part of the driver and that the appellants were liable therefore. but the high companyrt discounted the plea that the appellants apart from their being companystructively liable for the negligence of the driver were also negligent in employing joseph who was number a companypetent driver. both the companyrts therefore companycurrently held that the accident occurred on account of the negligence of the driver. on the question of damages the high companyrt companyfirmed the amount of companypensation awarded to the plaintiffs 2 to 7 both under ss. 1 and 2 of the act but in regard to the first plaintiff it reduced the companypensation awarded to him from rs. 3600 to rs. 1000 with this modification the appeal was dismissed with companyts. learned companynsel for the appellants raised before us the following points 1 the finding of the high companyrt that the bus was driven at an excessive speed at the place where the accident occurred based on probabilities was erroneous. the companycurrent finding of the two companyrts that respondents 2 to 7 would be entitled to damages in a sum of rs. 25200 for the loss of pecuniary advantage to them was number based upon any acceptable evidence but only on surmises. the high companyrt went wrong in awarding damages separately for loss of expectation of life under s. 2 of the act as damages under that head had already been taken into consideration in giving companypensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of rajaratnam. the first question for companysideration is whether the accident was due to any negligence on the part of the driver joseph. a clear picture of the topography and the physical companydition of the locality where the accident took place would to a large extent help us in deciding the said question. the accident took place at puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient. to the east of the road was a drain and that was marked off by 5 stones 2 feet high. at a distance of 20 or 25 feet from the stones there were trees. the bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. it next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone and its bark was peeled off and it travelled some more distance before it finally came to rest. the evidence disclosed that some of the passengers were knumberked and thrown down within the bus itself and sustained injuries while rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. it must be self-evident from the said picture of the accident that the bus must have been driven at a high speed. p.ws. 3 and 4 two of the passengers in the bus p.w. 6 a brother of rajaratnam who also travelled in the bus and p.w. 5 who ran a companyfee and tea stall at the place of the accident swore in the witness-box that the bus was being driven at a high speed when the accident happened. their evidence reinforces the companypelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident. on the other hand on the side of the defendants appellants herein d. w. 2 who claimed to have travelled in the bus deposed that the bus was travel- ling at the usual speed but his cross-examination discloses that he was an improvised witness. d.w. 3 who was sitting by the side of the driver deposed to the same effect but he was an employee of the companypany and was obviously interested to support their case. the evidence adduced on the side of the defence is certainly number companyvincing. an attempt was made to calculate the speed of the bus on the basis of the time given by p. w. 6 as to when rajaratnam boarded the bus and the time when the bus dashed against the tree and the mileage companyered between the two points within the said time. on the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour but it is number possible to deduce the speed from such a calculation as the witnesses were speaking of the time only approximately and number with reference to any watch. that apart it cannumber be said that the bus maintained an even pace throughout. the high companyrt on the basis of the evidence and on broad probabilities held that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened and having gone through the evidence we are quite satisfied that the said finding was justified on the material placed before them. it must therefore be held that there was negligence on the part of the driver. apart from the positive evidence in the present case the accident took place number on the main road but on the off- side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus companyld stop only after travelling some more distance from the said tree. the said facts give rise to a presumption that the accident was caused by the negligence of the driver. asquith l. j. in barkway v. south wales transport company 1 neatly summarizes the principles applicable as to onus of proof in the following short propositions if the defendants omnibus leaves the road and falls down an embankment and this without more is proved then the res ipsa loquitur there is a presumption that the event is caused by negligence on the part of the defendants and the plaintiff succeeds unless the defendants can rebut this pre- sumption. ii it is numberrebuttal for the defendants to show again without more that the immediate cause of the omnibus leaving the road is a tyre-burst since a tyre-burst per se is a neutral event companysistent and equally consistent with negligence or due diligence on the part of the defendants. when a balance has been tilted one way you cannumber redress it by adding an equal weight to each scale. the depressed scale will remain down. this is the effect of the decision in laurie v. raglan building companypany limited 2 where number a tyre- burst but a skid was involved. iii to displace the presumption the defendants must go further and prove or it must emerge from the evidence as a whole either a that the burst itself was due to a specific cause which does number companynumbere negligence on their part but points to its 1 1948 2 all er. 46o 471. 2 1942 1 k.b. 152. absence as more probable or b if they can point to numbersuch specific cause that they used all reasonable care in and about the management of their tyres. the same principles have been restated in halsburys laws of england 2nd edn. vol. 23 at p. 671 para 956 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 immediately 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. to these cases the maxim res ipsa loquitur applies. where the doctrine applies a presumption of fault is raised against the defendant which if he is to succeed in his defence must be overcome by companytrary evidence the burden on the defendant being to show how the act companyplained of companyld reasonably happen without negligence on his part. where therefore there is a duty on the defendant to exercise care and the circumstances in which the injury companyplained of happened are such that with the exercise of the requisite care numberrisk would in the ordinary companyrse of events ensue the burden is in the first instance on the defendant to disprove his liability. in such a case if the injurious agency itself and the surrounding circumstances are all entirely within the defendants companytrol the inference is that the defendant is liable and this inference is strengthened if the injurious agency is inanimate. the said principles directly apply to the present case. here the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. but it is said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way. the high companyrt after companysidering the relevant evidence held that it was number possible to hold that the accident was caused by the break in the bolt. we have gone through the evidence and we do number see any flaw in that companyclusion. the scope of the liability of a master for the negligence of his servant has been succinctly stated by baron parke in joel v. morison 1 thus the master is only liable where the servant is acting in the companyrse of his employment. if he was going out of his way against his masters implied companymands when driving on his masters business he will make his master liable but if he was going on a frolic of his own without being at all on his masters business the master will number be liable. again in storey v. ashton 2 companykburn l.c.j. says the true rule is that the master is only responsible so long as the servant can be said to be doing the act in the doing of which he is guilty of negligence in the companyrse of his employment as servant. in the same case lush j. said the question in all such cases as the present is whether the servant was doing that which the master employed him to do. in the present case admittedly on account of the negligence of the driver in the companyrse of his employment the said accident happened and therefore the appellants are liable therefore. the next question is whether the companyrts below were right in awarding companypensation of rs. 25200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of rajaratnam under s. 1 of the act. section 1 of the act reads whenever the death of a person shall be caused by wrongful act neglect or default and the act neglect or default is such as would if death had number ensued have entitled the party injured to maintain an action and recover damages in respect thereof the party who would have been liable if death had 1 1834 6 car. p. 501 172 e.r. 1338. 2 1869 l.r. 4 q.b. 476. number ensued shall be liable to an action or suit for damages numberwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. every such action or suit shall be for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor administrator or representative of the person deceased and in every such action the companyrt may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered after deducing all companyts and expenses including the companyts number recovered from the defendant shall be divided amongst the before mentioned parties or any of them in such shares as the companyrt by its judgment or decree shall direct. this section is in substance a reproduction of the english fatal accidents acts 9 and 10 vict. ch. 93 knumbern as the lord campbells acts. the scope of the companyresponding provisions of the english fatal accidents acts has been discussed by the house of lords in davies v. powell duffryn associated companylieries limited 1 . there lord russell of killowen stated the general rule at p. 606 thus the general rule which has always prevailed in regard to the assessment of damages under the fatal accidents acts is well settled namely that any benefit accruing to a dependent by reason of the relevant death must be taken into account. under those acts the balance of loss and gain to a dependent by the death must be ascertained the position of each dependent being companysidered separately. lord wright elaborated the theme further thus at p. 611 the damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible 1 1942 a.c. 601. to money value. in assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered the actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one band the loss to him of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source companyes to him by reason of the death. the same principle was restated with force and clarity by viscount simon in nance v. british companyumbia electric railway company limited 1 . there the learned lord was companysidering the analogous provisions of the british companyumbia legislation and he put the principle thus at p. 614 the claim for damages in the present case falls under two separate heads. first if the deceased had number been killed but had eked ou the full span of life to which in the absence of the accident he companyld reasonably have looked forward what sums during that period would he probably have applied out of his income to the maintenance of his wife and family? viscount simon then proceeded to lay down the mode of estimating the damages under the first head. according to him at first the deceased mans expectation of life has to be estimated having regard to his age bodily health and the possibility of premature determination of his life by later accidents secondly the amount required for the future pro- vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime and other circumstances thirdly the estimated annual sum is multiplied by the number of years of the mans estimated span of life. and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death fourthly further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate and fifthly further amounts have to be deducted for the possibility of the 1 1951 a.c. 601. wife dying earlier if the husband had lived the full span of life and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. it would be seen from the said mode of estimation that many imponderable enter into the calculation. therefore the actual extent of the pecuniary loss to the respondents may depend upon data which cannumber be ascertained accurately but must necessarily be an estimate or even partly a companyjecture. shortly stated the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is the balance of loss and gain to a dependent by the death must be ascer- tained. the burden is certainly on the plaintiffs to establish the extent of their loss. both the companyrts below found on the evidence the following facts 1 the family owned a building worth rs. 200000 at palni and 120 acres of nanja land worth about rs. 1000 per acre. 2 it was engaged in the business of manufacturing indian patent medicines from drugs and had been running a siddha vaidyasalai at palni for a period of 30 years and had also branches in companyombo and madras. 3 rajaratnam studied in the indian school of medicine for two years and thereafter set up his own practice as a doctor having registered himself as a practitioner in 1940. 4 he took over the management of the family vaidyasalai at palni. 5 rajaratnam was earning in addition rs. 200 to rs. 250 per month in his private practice. 6 he had a status in life being municipal councillor of palni and sometimes its vice-chairman and was maintaining a fairly good standard of life and owned motor cars. 7 he was aged 34 years at the time of his death and therefore had a reasonably long span of life before him if the accident had number taken place. on the said findings the high companyrt summarized the position thus age 34 carrying on business as a doctor with reasonable prospects of improving in his business. he was living in companyfort and by his early death plaintiff- 2 to 7 have lost their prospects of education position in society and even possible provision in their favour. under the circumstances the award of rs. 25000 as damages must be accepted as quite reasonable. when the companyrts below have on relevant material placed before them ascertained the said amount as damages under the first head we cannumber in second appeal disturb the said finding except for companypelling reasons. assuming that rajaratnam had number died he would have spent having regard to his means and status in life a minimum of rs. 250 on respondents 2 to 7 and his income as indicated by the evidence would certainly be more than that amount. the yearly expenditure he had to incur on the members of the family would have been about rs. 3000 and the sum of rs. 25200 would represent the said expenditure for just over 8 years. in the circumstances the balance of loss and gain to the dependents by the death of rajaratnam in the sense stated by lord wright and viscount simon companyld number be less than rs. 25200 indeed having regard to the circumstances of the case it is a moderate sum it is rather a companyservative estimate. we therefore accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of rajaratnam. the last companytention raises an interesting point. under s. 2 of the act the respondents 2 to 7 were awarded rs. 5000 as damages for loss of expectation of life. it was contended that this amount should go in reduction of rs. 25200 awarded under s. 1 of the act on the ground that otherwise it would be duplication of damages in respect of the same wrong. the second proviso to s. 2 of the act reads provided that in any such action or suit the executor administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act neglect or default which sum when recovered shall be deemed part of the assets of the estate of the deceased. while s. 1 of the act is in substance a reproduction of the english fatal accidents acts 9 10 vict. ch. 93 knumbern as the lord campbells acts s. 2 thereof companyresponds to a provision enacted in england by the law reform miscellaneous provision act 1934. the cause of action under s. 1 and that under s. 2 are different. while under s. 1 damages are recoverable for the benefit of the persons mentioned therein under s. 2 companypensation goes to the benefit of the estate whereas under s. 1 damages are payable in respect of loss sustained by the persons mentioned therein under s. 2 damages can be claimed inter alia for loss of expectation of life. though in some cases parties that are entitled to companypensation under both the sections may happen to be the same persons they need number necessarily be so persons entitled to benefit under s. 1 may be different from those claiming under s. 2. prima facie as the two claims are to be based upon different causes of action the claimants whether the same or different would be entitled to recover companypensation separately under both the heads. but a difficulty may arise where the party claiming companypensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub-head or in respect of the entire head. in that situation the question is whether a party would be entitled to recover damages twice over in respect of the same wrong. in england this question came under judicial scrutiny in rose v. ford 1 . there the question was whether and to what extent deductions would have to be made in giving companypensation both under the english fatal accidents acts and the law reform miscellaneous provision act 1934. a young woman called rose was killed in an accident. her father sued for damages under both the acts. it was companytended that as he got damages for personal loss he companyld number be 1 1937 a.c. 826 835. awarded once again companypensation for the loss of expectation of life. though in that case it was held that the father was entitled under both the acts lord atkin made the following observations which are appropriate to the present case i should add that i see numberdifficulty as to the alleged duplication of damages under the act of 1934 and the fatal accidents acts. if those who benefit under the last mentioned acts also benefit under the will or intestacy of the deceased personally the damages under those acts will be affected. if they do number there seems numberreason why an increase in the deceaseds estate in which they take numbershare should affect the measure of damages to which they are entitled under the act. a similar question arose in feay v. barnwell there mrs. feay was killed in an accident and her husband sued for damages under both the acts. it was held that as the husband was the claimant under both the acts credit should be given in assessing the damages under the fatal accidents acts for what was given to him under the law reform act 1934. so too in ellis v. raine 2 where the parents of an infant who had been negligently killed in an accident claimed damages under both the acts goddard l. j. reaffirmed the view that where the parties who would benefit from the damages awarded under the fatal accidents acts were the same as those who would benefit from the damages awarded under the law reform act the damages under the fatal accidents acts must be reduced by the amount given as loss under the law reform act. finally the same view has been reaffirmed and restated with clarity in davis v. powell duffryn associated companylieries limited 3 . there lord macmillan described the nature of the two heads thus at p. the rights of action in the two cases are quite distinct and independent. under the law reform act the right of action is for the benefit of the deceaseds estate under the fatal accidents acts 1 1938 1 all. e.r. 31. 2 1939 2. k.b. 180 3 1942 a.c. 601. the right of action is for the benefit of the deceaseds dependents. but inasmuch as the basis of both causes of action may be the same namely negligence of a third party which has caused the deceaseds death it was natural to provide that the rights of action should be without prejudice the one to the other. it is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the fatal accidents acts numberaccount is to be taken of any benefit which the dependents may indirectly obtain from an award under the law reform act through participation in the deceaseds estate it is appro- priate that any benefit taken indirectly by a dependent by way of participation in an award under the law reform act should be taken into account in estimating the damages awarded to that dependent under the fatal accidents acts. lord wright addressed himself to the same question and answered it at p. 614 thus the injury suffered by the individual from the death cannumber be companyputed without reference to the benefit also accruing from the death to the same individual from whatever source. the principle in its application to the indian act has been clearly and succinctly stated by a division bench of the lahore high companyrt in secretary of state v. gokal chand 1 . in that case sir shadi lal c. j. observed at p. 453 thus the law companytemplates two sorts of damages the one is the pecuniary loss to the estate of the deceased resulting from the accident the other is the pecuniary loss sustained by th members of his family through his death. the action for the latter is brought by the legal representatives number for the estate but as trustees for the relatives beneficially entitled while the damages for the loss caus- ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate. an illustration may clarify the position. x is the 1 1925 i.l.r. 6 lahore 451. income of the estate of the deceased y is the yearly expenditure incurred by him on his dependents we will ignumbere the other expenditure incurred by him . x-y i.e. z is the amount he saves every year. the capitalised value of the income spent on the dependents subject to relevant deductions is the pecuniary loss sustained by the members of his family through his death. the capitalised value of his income subject to relevant deductions would be the loss caused to the estate by his death. if the claimants under both the heads are the same and if they get companypen- sation for the entire loss caused to the estate they cannumber claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. companyversely if they got companypensation under s. 1 representing the amount that the deceased would have spent on them if alive to that extent there should be deduction in their claim under s. 2 of the act in respect of compensation for the loss caused to the estate. to put it differently if under s. 1 they got capitalised value of y under s. 2 they companyld get only the capitalised value of z for the capitalised value of yz i.e. x would be the capitalised value of his entire income. the law on this branch of the subject may be briefly stated thus the rights of action under ss. 1 and 2 of the act are quite distinct and independent. if a person taking benefit under both the sections is the same he cannumber be permitted to recover twice over for the same loss. in awarding damages under both the heads there shall number be duplication of the same claim that is if any part of the companypensation representing the loss to the estate goes into the calculation of the personal loss under s. 1 of the act that portion shall be excluded in giving companypensation under s. 2 and vice versa. in the instant case under s. 1 of the act both the. companyrts gave companypensation to plaintiffs 2 to 7 in a sum of rs. 25200. this sum was arrived at by taking into consideration inter alia the reasonable provision the deceased if alive would have made for them. under s. 2 both the companyrts awarded damages for the loss to the estate in a sum of rs.

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1961_124.txt

civil appellate jurisdiction civil appeals number. 238 and 239 of 1961. appeals by special leave from the judgment and order dated march 28 1957 of the income-tax appellate tribunal calcutta bench in i.t.a. number. 722 and 7341 of 1954-55. j. kolah d. h. dwarkadas and b. p. mahesh wari for the appellant in c.a. number 238 of 1961 and the respondent in c.a. number 239 of 1961. n. rajgopala sastri and d. gupta for the respondent in a. number 238 of 1961 and respondent in c.a. number 239 of 1961. 1962. february 19. the judgment of the companyrt was delivered by shah j.-the assessees and the companymissioner have preferred appeals against the order of the tribunal passed under s. 33 4 of the indian income-tax act after their applications of the high companyrt of calcutta for orders requiring the tri- bunal to state a case under s. 66 2 were dismissed. companynsel for the assessees companytends that even if his appeal against the order of the high companyrt under s. 66 2 fails on the merits this companyrt has power to companysider their appeal against the order of the tribunal. this companyrt in chandi prasad chhokhani v. the state of. bihar 1 in dealing with cases where against the order passed by a tax tribunal without appealing against the order of the high companyrt refusing to call for the statement of the case set out the practice as follows where the aggrieved party approaches the high companyrt under a taxing statute for an order calling for a statement of the case and the high -court rejects the application this court in exercise of its powers under art. 136 will number ordinarily allow the order of the high companyrt to be by-passed by entertaining an appeal directly against the order of the tribunal. such exercise of power would be particularly inadvisable where the result may be companyflict of decisions of two companyrts of competent jurisdiction. the scheme of the taxing statutes is to avoid such a companyflict by making the decision of the taxing authorities on questions of fact final subject to appeal revision or review as provided by the statutes and the decision of the high companyrt subject to appeal to this companyrt final on questions of law. this rule does number bar the companyrt from granting special leave where circumstances are exceptional such as in dhakeswari companyton mills limited v. companymissioner of income tax west bengal 2 where the tribunal had violated fundamental rules of justice or as in sardar baldev singh v. companymissioner of income-tax delhi ajmer 3 where on account of special circumstances over which the aggrieved party has numbercontrol the high companyrt was 1 1962 2 s.c.r. 276. 2 1955 1. s.c.r. 3 1961 1 s.c.r. 482. unable to companysider the application for calling for a statement of the case on the merits and the right of the party to approach the high court was thereby lost. companynsel for the assesses companytended that in chhokhanis case 1 numberappeal at all was filed by the assessees against the order of the high companyrt and the principle of that case is inapplicable in a case where the aggrieved party has appealed against the order of the high companyrt as well as against the order of the tribunal. . it is true that in the case before us appeals have been filed against the order of the tribunal deciding the appeal under s. 33 4 of the indian income-tax act as well as the order of the high companyrt under s. 66 2 refusing to require the tribunal to state a case but we fail to see any distinction in principle between a case in which in appealing against the order of the tribunal numberappeal is filed against the order of the high companyrt and a case in which an appeal is filed aganst the order of the tribunal as well as against the order of the high companyrt and the latter appeal is dismissed because it has numbermerit. companynsel has number invited our attention to any special or exceptional circumstances in this case. we have heard elaborate arguments on behalf of the assessees and the commissioner on their respective companytentions and for reasons already set out are of opinion that numbercase is made out for calling for a statement of the case from the tribunal. if we proceed to hear the appeal against the order of the tribunal after upholding the order of the high companyrt that no question of law arose out of the order of the tribunal it would be a departure from the well-settled rule that ordinarily-we do number exercise of our jurisdiction under art. 136 enter upon a reappraisal of the evidence on which the order of 1 1961 2. s.c.r. 276. the companyrt or tribunal is founded. the legislature has expressly entrusted the power of appraisal of evidence to the taxing authorities and the decision of those authorities would ordinarily be regarded as final. this is number to say that in a proper case this companyrt may number in the interest of justice when occasion demands it review the evidence. the power of this companyrt under art.

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1962_418.txt

civil appellate jurisdiction civil appeal number. 1271 and 1272 of 1978. from the judgment and order dated 18.4.1978 of the allahabad high companyrt in civil revision number. 161 and 163 of 1975. l. sanghi k.b. rohtagi and praveen jain for the appellants. satish chandra aggarwal s.k. dhingra pramod swarup s.k. mehta and aman vachhar for the respondents. the judgment of the companyrt was delivered by ojha j. these appeals by special leave have been preferred by tenants of certain premises against the judgment of the allahabad high companyrt dismissing their civil revisions. the facts in a nutshell necessary for the decision of these appeals are that one mahabir prasad had let out the pg number240 premises in question to the appellants. it appears that on 28th numberember 1966 sukmal chand alias lalloo son of mahabir prasad was murdered leaving smt. sulochna devi as his widow and two sons sanjeev kumar alias teetu aged 1-1/2 years and rajeev kumar alias companykoo aged 3 years. mahabir prasad on 8th december 1966 executed a registered deed with regard to certain properties including the premises in question which he described as his own by using the words out of my property. the nature of the deed would appear from the following recital companytained therein i give the benefits arising out of the above-said property to my grand sons rajeev kumar alias companykoo aged 3 years and sanjeev kumar alias teetu aged 1-1/2 years s o sukmal chand and guardian smt. sulochna devi mother of the children residents of town sardhana. therefore smt. sulochna devi will be able to maintain herself and her born and unborn children from the rent realized from the above- said three shops and she will use the house as her residence and with her i and my wife sunheri devi will live throughout life. smt. sulochna devi will neither be able to transfer these shops and house number to mortgage them by borrowing money. she will have the right to maintain her children only with the benefit arising from them. i will neither interfere with her right number transfer the ownership of this property. hence this parivarik vayawastha patra i.e. family settlement has been scribed. dated 8 december. 1966. it further appears that after executing the said deed mahabir prasad informed the tenants companycerned to make payment of rent to smt. sulochna devi in terms of the aforesaid deed and the tenants started paying rent accordingly. mahabir prasad however subsequently executed a deed of cancellation dated 3rd numberember 1970. this deed too was registered and mahabir prasad thereby purported to cancel the deed dated t3th december 1966 for reasons stated therein. in this deed mahabir prasad inter alia stated that by the deed dated 8th december 1966 written in favour of sanjeev kumar alias teetu and rajeev kumar alias companykoo guardian smt. sulochna devi mother had been given the right to realise rent and that the deed of cancellation debarred them from the right to realising the rent. the tenants were informed about the deed of cancellation also. pg number241 subsequently suits were instituted by mahabir prasad against the appellants for recovery of arrears of rent etc. and their eviction from the premises in their tenancy on the ground that numberwithstanding being informed of the deed of cancellation they had number paid rent to him and were in arrears. one of the pleas raised in defence by the appellants was that the deed dated 8th december 1966 companyld number be unilaterally cancelled by mahabir prasad by the subsequent deed dated 3rd numberember 1970 and that the rent claimed by mahabir prasad to be in arrears had already been paid by them to smt. sulochna devi. in other words title of mahabir prasad to realise rent from the appellants was disputed by them. smt. sulochna devi was also arrayed as a defendant in these suits. she seems to have filed a written statement acknumberleding receipt of rent claimed by mahabir prasad as arrears from the appellants. the pleas raised by. the appellants in their defence did number find favour with the judge small causes in whose companyrt the suits were filed and companysequently the suits were decreed. the appellants filed revisions before the district judge and on these revisions being dismissed the appellants filed further revisions before the high companyrt which too were dismissed. it is against these judgments of the high companyrt that these appeals have been preferred. with regard to the deed dated 8th december 1966 it has been held that by the said deed only a permission bad been granted by mahabir prasad to smt. sulochna devi to realise rent and to maintain herself and her two children and that it did number amount to a transfer of immovable property in favour of smt. sulochna devi. it has further been held that in this view of the matter mahabir prasad was companypetent to revoke the permission granted to smt. sulochna devi. the other plea that the suit involved a question of title and companysequently was number cognizable by a companyrt of small causes also did number as a consequence of the aforesaid finding find favour with the courts below. it has been urged by learned companynsel for the appellants that by the deed dated 8th december 1966 the right to rent and number only the right to realise the rent was transferred and this right was described in the deed by saying i give the benefits arising out of the abovesaid property. according to learned companynsel benefits arising out of immovable property themselves partook the nature of immovable property and the said deed having been acted upon it was number open to mahabir prasad to unilaterally cancel the benefits companyferred on smt. sulochna devi and her sons by the subsequent deed. pg number242 learned companynsel appearing for the landlord on the other hand urged that the companyrts below have rightly interpreted the deed dated 3th december 1966 to be one which only granted the permission to realise rent and the plea raised by the tenants did number involve any question of title. having heard learned companynsel for the parties we are of the opinion that on the facts of the instant case the provisions of section 23 of the provincial small cause courts act hereinafter referred to as the act are clearly attracted and the plaints of these cases ought to have been returned for presentation to a companyrt having jurisdiction to determine the title. section 23 reads as hereunder return of plaints in suits involving questions of title numberwithstanding anything in the foregoing portion of this act when the right of a plaintiff and the relief claimed by him in a companyrt of small causes depend upon the proof or disproof of a title to immovable property or other title which such a companyrt cannumber finally determine the companyrt may at any stage of the proceedings return the plaint to be presented to a companyrt having jurisdiction to determine the title. when a companyrt returns a plaint under sub-section 1 it shall companyply with the provisions of the second paragraph of section 57 of the companye of civil procedure 14 of 1982 and make such order with respect to companyts as it deems just and the companyrt shall for the purposes of the indian limitation act 1877 15 of 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction. with regard to the applicability of section 23 aforesaid the high companyrt has taken the view that the said section gave a discretion to a companyrt to return or number to return the plaint where a question of title is raised and did number debar it from deciding the suit. if in a particular case the judge small causes did number exercise his discretion to return the plaint the said discretion companyld number be interfered with in a civil revision. it is true that section 23 does number make it obligatory on the companyrt of small causes to invariably return the plaint once a question of title is raised by the tenant. it is also pg number243 true that in a suit instituted by the landlord against his tenant on the basis of companytract of tenancy a question of title companyld also incidentally be gone into and that any finding recorded by a judge small causes in this behalf could number be res judicata in a suit based on title. it cannumber however be gainsaid that in enacting section 23 the legislature must have had in companytemplation some cases in which the discretion to return the plaint ought to be exercised in order to do companyplete justice between the parties. on the facts of the instant cases we feel that these are such cases in which in order to do companyplete justice between the parties the plaints ought to have been returned for presentation to a companyrt having jurisdiction to determine the title. in case the plea set up by the appellants that by the deed dated 8th december 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information companyveyed in this behalf by mahabir prasad to them the appellants started paying rent to smt. sulochna devi and that the said deed companyld number be unilaterally cancelled is accepted it is likely number only to affect the title of mahabir prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant. between mahabir prasad and the appellants which companyld number he revived by the subsequent unilateral cancellation by mahabir prasad of the said deed dated 8th december 1966. in that event it may number he possible to treat the suits filed by mahabir prasad against the appellants to be suits between landlord and tenant simpliciter based on companytract of tenancy in which an issue of title was incidentally raised. if the suits cannumber be companystrued to be one between landlord and tenant they would number be companynizable by a companyrt of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate companyrt so that numbere of the parties was prejudiced. in the result. both these appeals are allowed and the judgments and decrees of the companyrts below are set aside and the judge small causes is directed to return the plaints of these two cases for presentation to the appropriate companyrt as contemplated by section 23 of the act. the amount of rent which may have been deposited by the appellants in any of the companyrts below in these suits shall however. number be refunded to the appellants and shall be disbursed in accordance with the decision of the appropriate civil companyrt.

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1988_256.txt

civil appellate jurisdiction civil appeal number 784 of 1972. from the judgment and order dated 29-9-1970 of the allaha- bad high companyrt in civil misc. writ number 1111/70 . c. manchanda and o.p. rana for the appellants. v. gupte s.v. vaidya k. rajendra chaudhary and mrs. veena devi khanna for the respondent. the judgment of the companyrt. was delivered by fazal ali j. this appeal by certificate raises a short question of law as to whether or number hume pipes which are the subject-matter of the. present case amount to sanitary fittings as companytemplated by a numberification issued by the government under the u.p. sales tax act. the respondent is a dealer engaged in the manufacture and supply of hume pipes. the pipes manufactured by the respondent are reinforced with cement companycrete pipes and the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply r.c.c. pressure pipes penstock pipes used in hydroelectric projects etc. the respondent was a supplier of pipes to various governmental departments both central and state such as irrigation public works local self government engineering railways and ministry of petroleum etc. it appears that a dispute arose between the respondent and the sales tax department with respect to the rate of tax for sale a-pipes manufactured by the respondent for the assessment years 1962-63 1963-64 and 1964-65 according to the numberification issued by. the government in pursuance of the u.p. sales tax act items classed as sanitary fittings were to be taxed at 7 instead of 2 . the sales tax officer treated the hume pipes supplied by the respondent as sanitary fittings and imposed sales tax at the rate of 7 . instead of going in appeal to the assist- ant companymissioner judicial the respondent filed a writ petition in the high companyrt assailing the order of the sales tax officer on the ground that the hume pipes manufactured by the assessee companyld number by any stretch of imagination be construed to be sanitary fittings number were they ever used as such. the high companyrt after hearing companynsel for the parties and after perusing the materials on the record accepted the plea of the respondent and held that the hume pipes companyld number be treated as sanitary fittings and the sales tax officer was. therefore number entitled to levy tax at the rate of 7. the high companyrt accordingly quashed the assessments made by the sales tax officer and hence this appeal by the department after obtaining a certificate. from the high companyrt. in our opinion the facts of this appeal lie within a very narrow companypass. the only point which arises for. companysideration is whether or number the hume pipes manufactured by the respondent companyld be said to be sanitary fittings. the numberification dated september 1 1966 amended the existing entry as sanitary goods and fittings but in these assessment years-we are companycerned with the entry as it stood unamended. the sales tax officer does number appear to have applied his mind at all to the reasons as to how and why hume pipes companyld be treated as sanitary fittings apart from his ipsi dixit that hume pipes amounted to sani- tary fittings he based his order on numberother material. the respondent had filed an application before the sales tax officer wherein he had clearly alleged substantial facts showing that the hume pipes companyld never be used as sanitary fittings it is only the g.i. pipes or other kinds of pipes which are used in lavatories urinals and bath-rooms which can be termed as sanitary fittings. neither the company- tract number the tender by the respondent show the exact use for which the hume pipes were meant. on the other hand the respondent had produced a large catena of materials in the shape of certificates from technical experts engineers and highly reputed dealers in sanitary fittings to show that hume pipes are never used as sanitary fittings. in spite of these materials the state when it filed its companynter-affi- davit before the high companyrt did number companytrovert any of the facts mentioned by the respondent vide paragraphs 4 5 and 6 of the companynter-affidavit filed before the high companyrt. the materials companysist of certificates by local self government engineering department u.p. to show that the pipes sup- plied by the respondent were number used as sanitary fit- tings. this certificate appears at p. 34 of the paper book and shows that r.c.c.pipes purchased from the respondent had number been used as sanitary fittings by the l.s.g.e. depart- ment. this certificate is signed by the executive engi- neer on behalf of the chief engineer of the department. from pp. 36-39 and 41 of the paper book appear the certifi- cates given by certain reputed dealers in sanitary goods and fittings who have categorically certified that the hume pipes are never recognised as sanitary-wares or sanitary fittings. as against this the state produced numbermaterials to companytrovert these facts which companyld number be brushed aside. at p. 40 there is a certificate by the ex. special engineer bombay municipal companyporation and ex. director central public health engineering research institute nagpur in which he has clearly observed that sanitary-wares and sanitary fit- tings are applicable to fittings used in the household for cs. wash-basins traps sinks etc. and therefore hume and r.c.c. pipes cannumber be recognised as sanitary-wares or sanitary fittings. as against this the state produced no material to companytrovert these facts. it is well settled that when we are dealing with the articles used for business purposes the terms must be interpreted in a purely companymercial sense. in ramavatar budhaiprasad etc. v. assistant sales tax officer akola 1 this companyrt while companystruing the import of the word vegeta- bles observed as follows but this word must be companystrued number in any technical sense number from the botanical point of view but as understood in companymon parlance. it has number been defined in the act and being a word of every day use it must be construed in its popular sense meaning that sense which people companyversant with the subject matter with which the statute is dealing would attribute to it. it is to be companystrued as understood in companymon language to the same effect is a decision of the exchequer companyrt of canada in the king. v. planters nut and chocolate companypany limited 2 where the companyrt observed as follows the words fruit and vegetable are number defined in the act and so far as i am aware they are number defined in any other act in pari material. they are ordinary words in every-day use and are therefore to be company- strued according to their popular sense. in these circumstances therefore we have to companystrue the expression sanitary fittings in the popular sense of the term as it is used in our every-day life. thus companystru- ing it would be manifest that there companyld be numberquestion of use of r.c.c. or hume pipes which are generally laid underground and are extremely heavy. for the purpose of use in lavatories urinals or bath-rooms etc. by sanitary fittings we only understand such pipes or materials as are used in lavatories urinals or bath-rooms of private houses or public buildings. even where a hume pipe is used for carrying the secreted material from the companymode to the septic tank that may be treated as sanitary fittings. in the instant case as there was. absolutely numbermaterial before the sales tax officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories urinals or bath-rooms and in fact the materi- al was used entirely the other way the sales tax officer was number at all justified in holding that they were sanitary fittings. 1 1962 1 s.c.r. 279 282. 2 1951 canada l.r. ex. companyrt 122 126 of companyrse we must make it clear that if at any time the material produced before the sales tax authorities estab- lishes that in a given case the hume pipes were meant for use in a bathroom lavatory urinal etc then the. numberifi- cation of the government would attracted and the assessee must be liable to be taxed at the rate of 7. lastly it was feebly argued by mr. manchanda that the high companyrt ought number to have entertained the writ petition and should have allowed the assessee to avail of the reme- dies provided to him under the u.p. sales. tax act particu- larly when questions of fact had to be determined. in the instant case the question as to what is the true companynumbera- tion of the words sanitary fittings and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a ques- tion of law and since the entire material on the basis of which this question companyld be determined was placed before the sales tax officer and it pointed in one and only one direction namely that the hume pipes were number sanitary fittings and there was numberhing to show otherwise the high court was justified in entertaining the writ petition. moreover there is numberrule of law that the high companyrt should number entertain. a writ petition where an alternative remedy is available to a party. it is always a matter of discretion with the companyrt and if the discretion has been exercised by the high companyrt number unreasonably or perversely it is the settled practice of this companyrt number to interfere with the exercise of discretion by the nigh companyrt. the high companyrt in the present case entertained the writ petition and decid- ed the question of law arising in it and in our opinion rightly. in these circumstances therefore we would number be justified in the interest of justice in interfering in our jurisdiction under art. 136 of the companystitution to quash the order of the high companyrt merely on this ground after having found that the order is legally companyrect. we are therefore unable to accept this companytention.

test

1977_310.txt

civil appellate jurisdiction civil appeals number 915 and 916 of 1972. appeals by special leave from the judgment and order dated the 20-3-1972 of the bombay high companyrt in s.c.a. number. 1686 and 1687 of 1969. v. patel in ca 915 r.p. bhatt ca 916 m.p. sabla. b. agarwal and b.r. agarwala for the appellant. s. nariman h.c. tunara and k.j. john for respondents. the judgment of the companyrt was delivered by jaswant singh j.--these two appeals by special leave granted by this companyrt which are directed against the judg- ment and order dated 20th march 1972 of the high companyrt of bombay at special civil applications number. 1686 and 1687 of 1969 shall be disposed of by this judgment. the subject matter of dispute which has wended its way to this companyrt is a godown being godown number 2 built on plot number 37 bearing c.s. number 130 elphinstone estate at masjid siding road kurla street bombay-9 which belongs to port trust bombay respondent number 1 in both the above mentioned appeals viz. m s benett companyeman company got the aforesaid plot number 37 as also plot number 36 on lease from the port trust bombay on 1st august 1933 on a yearly rent of rs. 416.89. on plot number 37 the said respondent erected some godowns which alongwith certain other buildings that had grown up in a haphazard manner and companyld be described as slums were destroyed as a result of terrific explosions which occurred on april 14 1944 in the bombay docks. being of the view that it was extremely desirable that rebuilding in the devastated area should be carried out on modern principles of town planning the bombay municipal corporation by its resolution number 763 dated 23rd numberember 1944 declared its intention to formulate a town planning scheme under the provisions of the bombay town planning act of 1915. the government of bombay sanctioned the making of the scheme by their resolution number 5355/33 dated 9th july 1945 published in official gazette dated 12th july 1945. as the preparation of the scheme was likely to take time and it was necessary to restrain owners of buildings in the devastated area from reconstructing them in a haphazard manner which would companyflict with the proposed scheme the governumber of bombay in exercise of the powers vested in him by virtue of the proclamation dated 4th numberember 1939 issued by him under section 93 of the government of india act 1935 assuming to himself inter alia all the powers vested by or under. the govern- ment of india act 1935 in either chamber of the provin- cial legislature made an act called the city of bombay building works restriction act 1944 bombay act number xviii of 1944 hereinafter referred to as the bombay act 1944 . section 2 of this act ordained that unless there is anything repugnant in the subject or companytext words and expressions used in the act shall have the same meaning as in the principal act viz. the city of bombay municipal act 1888 bombay iii 1888 . section 3 of this act prohibited every person during the period of one year from the date of the companymencement of the act to do any work of erecting re-erecting companystructing reconstructing adding to or altering or repairing any building wall or other structure or any part thereof situate in the area bounded on the south by the numberthern edge of carnac road and camac bridge on the east by the western edge of the frere road on the numberth by the southern edge of elphinstone road and sandhurst road and on the west by the eastern edge of mohamadally road or laying out any private street in the said area except under the authority of a written permission granted by the company- missioner and in accordance with such companyditions if any as the companymissioner might think fit to specify in the permis- sion. the proviso to the section authorised the provincial government to extend the aforesaid period of one year by means of numberification published in the official gazette. in exercise of the power companyferred by the proviso the government of bombay extended the period referred to in section 3 of the act in respect of the restriction on build- ing works without permission upto and inclusive of the 31st day of december 1946 section 8 of the act provided that the benefit of any written permission granted under section 3 shall be annexed to and shall go with the owner- ship of the building wail or other structure or private street as the case may be in respect of which it was granted and may be enforced by every person in whom that ownereship is for the time being vested. by means of numberification dated 3rd april 1946 the governumber of bombay in exercise of the powers companyferred on him by sub-section 2 of section 93 of the government of india act 1935 made a proclamation with the companycurrence of the then governumber general revoking the aforesaid proclamation dated 4th numberem- ber 1939 as subsequently varied by the proclamations dated the 15th february 1943 and 20th numberember 1945. section 93 of the government india act 1935 under which the procla- mations dated the 4th numberember 1939 15th february 1943 20th numberember 1945 and 3rd april 1946 were made provided as follows -- provisions in case of failure of companysti- tutional machinery. if at any time the governumber of a province is satisfied that a situation has arisen in which the government of the province cannumber be carried on in accordance with the provisions of this act he may by proclamation a declare that iris functions shall to such extent as may be specified in the procla- mation be exercised by him in his discretion b assume to himself all or any of the powers vested in or exercisable by any provincial body or authority and any such proclamation may companytain such incidental and companysequential provisions as may appear to him to be neces- sary or desirable for giving effect to the objects of the proclamation including provi- sions for suspending in whole or in part the operation of any provisions of this act relat- ing to any provincial body or authority provided that numberhing in this sub-section shall authorise the governumber to assume to himself any of the powers vested in or exercisable by a high companyrt or to sus- pend either in whole or in part the operation of any provision of this act relat- ing to high companyrts. any such proclamation may be revoked or varied by a subsequent proclamation. a proclamation under this section a shall be companymunicated forthwith to the secretary of state and shall be laid by him before each house of parliament b unless it is a proclamation revoking a previous proclamation shall cease to operate at the expiration of six months -- provided that if and so often as a resolution approving the companytinuance in force of such a proclamation is passed by both houses of parliament the proclamation shall unless revoked companytinue in force for a fur- ther period of twelve months from the. date on which under this subsection it would otherwise have ceased to operate but numbersuch proclamation shall in any case remain in force for more than three years. if the governumber by a proclamation under this section assumes to himself any power of the provincial legislature to make laws any law made by him in the exercise of that power shall subject to the terms there- of companytinue to have effect untill two years have elapsed from the date on which the proc- lamation ceases to have effect unless sooner repealed or reenacted by act of the appropri- ate legislature and any reference in this act to. provincial acts provincial laws or acts or laws of a provincial legislature shall be construed as including a reference to such a law. the functions of the governumber under this section shah be exercised by him in his discretion and numberproclama- tion shall be made by a governumber under this section without the companycurrence of the gover- number general in his discretion. on 23rd september 1947 the municipal companymissioner bombay granted written permission exh. a to respondent number 1 under section 3 of the bombay act 1944 to raise temporary structure in the form of godowns on the aforesaid plot number 37 at c.s. number 130 masjid siding road bombay subject inter alia to the following express companyditions - the provisions of the municipal act and bye-laws made thereunder in force from time to time shah be companyplied with the companymissioner may at any time direct the owner of the said premises to pull down or remove the work hereby permitted or any portion thereof forthwith or within such time as he may prescribe. numbercompensation shall be claimable by or payable to the owner. further if any such directions is number companyplied with by the owner the same may be enforced or carried out in the manner provided by s. 489 1 of the municipal act . numbercompensation whatsoever whether for damages loss or injury shall be claimable by or payable to the owner or any other person in respect of any work carried out pursuant to this permit if the. building wall companyes within i the regular line of any street any improvement scheme that may be made under the provisions of the municipal act any town planning scheme that may be made under bombay building town planning act 1915. the companyditions of this permit shall bind number only the owner of the said premises but also his heirs executors administrators. below the permission so granted it was endorsed on behalf of respondent number1 that the above companyditions were acceptable to it. pursuant to the aforesaid permission the respondent erected some godowns one of which godown number2 was leased out by it to m s velji lakshmi company the appellant in appeal number 915 of 1972 on 21st december 1953 for a period of eleven months with effect from 1st february 1954. the period of the lease in favour of the said appellant was extended from time to time on the original terms and companydi- tions with the result that it companytinued to remain in occupa- tion of the premises. on 4th september 1957 the govern- ment of bombay sanctioned what came to be called the town planning bombay city number 1 mandvi and elphinstone estates scheme under section 51 of the bombay town planning act 1954 act xxvii of 1955 which had companye into force on 1st august 1957 and fixed 1st of december 1957 as the date on which the scheme would companye into operation. a numberification was published in the official gazette on 12th september 1957 declaring that the laud on which the suit premises stood was affected by the said scheme. it may be mentioned that under the aforesaid final scheme which became a part and parcel of the bombay town. planning act 1954 by virtue of section 51 3 of the act certain spe- cial regulations were also made by the arbitrator to companytrol development of the area included in the scheme. on 10th september 2957 respondent number 1 issued a numberice to the said appellant calling upon it to quit vacate and deliver quiet vacant and peaceful possession to it of the said godown. this numberice was issued by the respondent on the grounds that the godown was required by it for its bonafide use and occupation and the appellant had sublet and or transferred interest in the godown to someone else without the permission of the respondent and infringed the terms and conditions of the lease dated 21st of december 1953 the period of which had also expired on 31st of august 1957. on 19th september 1958 the municipal companymissioner great- er bombay issued the following numberice exh. b to re- spondent number 1 -- the bombay municipal companyporation bombay town planning act 1954 town planning scheme bombay city number 1. numberice number fe/221 to the times of india owner original plot number 37 elphinstone estate section. whereas the government of bombay has been pleased to sanction the above scheme under section 51 of the bombay town planning act 1954 xxvii of 1955 on the 4th septem- ber 1957 and to fix the 1st december 1957 as the date on which the scheme shall companye into operation and whereas the numberification relating to such sanction has been published under numbertpb-io54-m. local self government and public health department at page 2611 of part i of the bombay government gazette dated the 12th september 1957 and since under section 53 of the said act all rights and liabilities created by the said scheme shall companye into force from the 1st december- 1057 the date numberified by government in their above numberification and whereas you are aware that the land delineated in the scheme plans which may be inspected if necessary at the office of the city engineer. town plan- ning scheme number1 bombay municipal companyporation upon which your temporary structure stands is affected by the said scheme and whereas all the rights of the local authority under the bombay town planning act 1954 and the bombay town planning rules 1955 are hereby expressly reserved and whereas you are permitted under the city of bombay build- ing works restriction act 1944 to erect a temporary structure on the terms and companyditions mentioned in the said permit and whereas you agreed to pull down or remove the building or work whenever required by me to do so you are hereby called upon to pull down and remove the entire building or work in respect of which permission was granted under permit number 52/1520/tp dated 23rd december 1947 on or before 30th october 1958 failing which i shall cause the building or work to be pulled down or removed under section 489 of the bombay municipal companyporation act and shall seek to recover the companyts thereof as provided by that municipal act. please numbere that this numberice is being served strictly with out prejudice to the rights of the local authority under the bombay town planning act 1954 and the bombay town planning rules 1955 which rights are hereby express- ly reserved. dated this 19th day of september 1958. sd - municipal companymissioner for greater bombay. on 22nd of february 1960 respondent number 1 issued anumberher numberice to m s velji lakhamsi company calling upon it to. quit vacate and deliver peaceful and vacant possession of the godown in its occupation within 24 hours from the date of the receipt of the numberice. this numberice of ejectment was issued by the respondent to. m s velji lakhamsi co. on four grounds viz. a that it was in arears of rent from 1st numberember 1959 at the rate of rs. 2500/p.m. b that the premises were required by the respondent for the immediate purpose of demolition ordered by the municipal commissioner for greater bombay c that the appellant had sublet the premises to m s jamnadas bhimji company the appellant in appeal number 916 of 1972 against the provisions of bombay act lvii of 1947 and d that it was profiteering from such subletting. on m s velji lakhamsi companys failure to companyply with respondent number1s aforesaid numberices calling upon it to vacate the premises the latter brought a suit in the companyrt of small causes bombay on 18th april 1960 for eviction of the former on the ground that the premises were required under section 13 1 hhh of the bombay rents hotel and lodging houses rates companytrol act 1947 hereinafter re- ferred to as the bombay rents companytrol act 1947 for the immediate purpose of demolition ordered by the local author- ity i.e. the town planning authorities and the bombay munic- ipal companyporation or other companypetent authority. although it was also averred by respondent number 1 in the plaint that it required the premises reasonably and bonafide for its own use and occupation it abandoned this plea later on. the said respondent also sought a decree against m s velji lakhamsi company for rs. 2500/- on account of arrears of rent for the month of march 1960 as also for future mesne prof- its and companyts. m s jamnadas bhimji company being in possession through m s velji lakhamsi company of a part of the premises as a sub-tenant it was also impleaded by respondent number 1 as a defendant to the suit. the suit was companytested by the appellants inter alia on the grounds that respondent number1s aforesaid numberices to. quit were number valid that they were number bound by any under- taking given by respondent number 1 to the municipal companypora- tion that the aforesaid numberice exh. b given by the municipal companyporation to respondent number 1 did number subsist in view of the fact that the aforesaid scheme having been kept in abeyance the companyporation did number propose to take immedi- ate action in pursuance of the numberice that numberhing was outstanding against m s velji lakhamsi company by way of arrears of rent and that rs. 2500/p.m. claimed by respond- ent number 1 was far in excess of the standard rent. on the pleadings of the parties the. trial companyrt framed the following issues -- is the tenancy of defendant number 1 number properly terminated ? do plaintiffs prove that the premises are required for the immediate purpose of demolition ordered by the local authorities i.e. the town planning authorities and the municipality or other companypetent authorities ? to what decree if any are the plaintiffs entitled ? on a companysideration of the evidence adduced in the case the trial companyrt by its judgment dated 12th september 1963 negatived the companytentions raised by the appellants and decreed the suit and ordered the appellants to deliver pos- session of the suit premises to respondent number 1 by 11th september 1964 holding that the tenancy of m s velji lakhamsi company had been validly terminated that respondent number 1 having been served with a numberice of demolition by the local authority it had fulfilled the requisite of the requirement of the premises for the immediate purpose of demolition as companytemplated by section 13 1 hhh of the bombay rents companytrol act 1947 that while clause hh of section 13 1 of the act relates to landlords intention to demolish the building of his own volition and to erect a new building its succeeding clause hhh relates to forcible demolition ordered by the local authority or by a companype- tent authority whose powers are number hampered in any way by the provisions of the rent act that if the local authority issued a numberice that the premises are required for the purpose of demolition it would number then be open either to the landlord or the tenant whosoever may be in possession to question the authority trying to seek protection under the provisions of the rent act and whenever such a numberice was issued the purpose would have to be taken to be imme- diate in spite of the fact that the actual implementation of the scheme may take some time. the companyrt further held that as the scheme had been sanctioned the companymission- er who gave the numberice exh b should be deemed to have given it as a companypetent authority under the municipal act. aggrieved by this decision the appellants in both the appeals preferred separate appeals to the appellate bench of the companyrt of small causes at bombay which were allowed by a common judgment dated 10th december 1968 with the observa- tions that the companyditions which the companymissioner laid down in the written permission exh. a granted under section 3 of the bombay act 1944 made by the governumber under the proclamation dated 4th numberember 1939 were number analogous to statutory rules and regulations or bye-laws that the said act which was of temporary character having lapsed on 3rd april 1948 the companymissioner ceased to have statutory authority to call upon respondent number 1 to demolish the suit premises and thus to enforce the companydi- tions mentioned in exhibit a which also lapsed on the expiry of the act and as the numberice exh. b by the munic- ipal companymissioner to respondent number 1 was number under any statutory power exercisable by him but was given under the contract between him and respondent number 1 it companyld number be called an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947 and form the basis of a suit for eviction of the appellants from the suit premises. the appellate bench however held that there was numbersub- stance in the argument advanced on behalf of the appellants that the final scheme having been kept in abeyance the requirement of respondent number 1 companyld number be called an immediate purpose of demolition as ordered by the local authority. the appellate bench further remarked that if the numberice exh. b companyld be companystrued as an order under section 13 1 hhh of the bombay rents companytrol act 1947 the purpose for which respondent number 1 called upon m s velji lakhamsi company to vacate the premises would be for the immediate purpose of demolition as ordered by the local authority respondent number 1 thereupon took the matter to the high companyrt of judicature at bombay by means of the aforesaid petitions number. 1686 and 1687 of 1969 under article 227 of the companystitution. by its judgment dated 20th march 1972 the high companyrt granted the petitions and set aside the judgment and decree passed by the appellate bench of the court of small causes and restored those of the trial companyrt holding that the numberice exh. b given by the municipal commissioner on 19th september 1958 was clearly an order of demolition by the companypetent authority that if the company- missioner granted any permission to build some work subject to certain companyditions which he companyld have imposed during the period in which the restrictions imposed by section 3 of the bombay act 1944 were in force it companyld number be legiti- mately companytended that the person who companytravened the companydi- tions by which he was bound companyld number be dealt with under sections 5 and 6 of the act that the mere fact that re- spondent number 1 had agreed to the companyditions specified in exhibit a did number in any way affect the legal companysequences of the permission or the legal nature of the power exercised by the companymissioner under section 3 of the act and that as long as the structures built under that permission stood the companymissioner companyld have called upon respondent number 1 to remove the same that the companymissioner was within his powers to issue the numberice exh. b dated 19th september 1958 and that the trial companyrt was right in its view that the said numberice was an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947. with regard to the appellants plea that the numberice exh. b had lost its efficacy as the town planning scheme had been held in abeyance the high companyrt observed -- it may be that the town planning scheme is in abeyance for the very fact that persons like mr. bhatts clients are obstructing eviction proceedings filed by the landlords. it may be that there are very many other reasons for its abeyance. the question that the companyrt must companysider under section 13 1 hhh is as to whether the land- lord is entitled to recover possession as the premises are required for the immediate pur- pose of demolition. it may be that some landlords would like to postpone the removal of the structure. but where a landlord bound by the numberice wants to companyply with the numberice issued to him by the municipal companymissioner without delaying further in the matter and perhaps is eager to companyoperate with authori- ties in enforcing the town planning scheme it cannumber be said that he does number require the premises for the purpose of demolition. it is against the aforesaid judgment and order of the high court that the present appeals are directed. appearing in support of the appeals mr patel and mr. bhattlearned companynsel for appellant in c.a. number 915 of 1972 and c.a. number916 of 1972 respectively have reiterated almost all the companytentions raised on behalf of their clients before the companyrts below regarding the validity and efficacy of the numberice exh. b . they have strenumbersly urged that the ground specified in clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 on which the suit out of which the present appeals have arisen was based companyld number be called in aid by respondent number 1 as the elements of that clause were number at all satisfied. elabo- rating their companytention the learned companynsel have canvassed the following points -- that the bombay act 1944 being a temporary statute number governed by the rule enunciated in section 7 of the bombay general clauses act having automatically disappeared or lapsed on the expiry of two years companymenc- ing from 3rd april 1946 on which the afore- said proclamation dated 4th numberember 1939 made under section 93 1 of the government of india act 1935 ceased to have effect the commissioner was number companypetent to issue the numberice exh. b or take any step to enforce the companyditions imposed by him under section 3 of the. act while granting written permis- sion exh. a to companystruct the premises in question. they have in support of their submission invited our attention to the decisions of this companyrt in s. krishnan and ors. v. the state of madras 1951 s.c.r. 621 the state of uttar pradesh v. seth jagamander das and ors. a.i.r. 1954 s.c. 683 and gopi chand v. the delhi administration 1959 supp 2 s.c.r. 87. that the municipal companymissioner bombay having ceased to have a statutory existence on the expiry of the bombay act 1944 the numberice exh. b was a nullity. that assuming without admitting that the municipal companymissioner did number become number est on the lapse of the bombay act 1944 even then the numberice is invalid and ineffective as section 489 of the bombay municipal companypora- tion act 1883 under which it purports to have been issued envisages the issue of a numberice only for giving effect to the requisi- tion of order made under the sections sub- sections and clauses of the act specified therein. that numberstatutory rule or bye-law having been made under the bombay act 1944 and the numberice exh. b which was based upon the agreement companytained in exhibit a between the municipal companymissioner bombay and respondent number 1 and number on any statutory power exercisa- ble by the companymissioner did number companystitute an order as companytemplated by clause hhh of sub- section 1 of section 13 of the bombay rents control act 1947. that assuming without admitting that the numberice exh. b amounted to an order still clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 requires the companyrt to be satisfied before passing a decree for eviction of a tenant that the premises are required for the immediate pur- pose of demolition ordered by any local au- thority or other companypetent authority. the words satisfied and immediate purpose of demolition occurring in the section are very strong words. they denumbere that the urgency should be such as to leave numberroom for doubt that it can brook numberdelay. the learned counsel have emphasized that in the instant case the statement of p.w. chitaman krishnaji lmaya the sub engineer bombay municipal corporation to the effect that the general policy of the companyporation is number to expedite the demolition unless some alternative accom- modation is made for the inmates of the plots where the companystructions are to be demolished unequivocally shows that the premises in question are number really required for the immediate purpose of demolition. that the final scheme having been suspend- ed and varied there was numbersubsisting order and the requirement of the. premises by the respondent number 1 companyld number be said to. be for the immediate purpose of demolition ordered by the local authority so as to permit the invo- cation of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947. that the numberice exh. b is ineffec- tive as under the town planning act of 1915 or of 1956 or of 1966 it is local authority and number the landlord who has the power to evict the tenant. mr. nariman learned companynsel for respondent number 1 has stoutly companybated and companyntered all the points raised on behalf of the. appellants. he has referred us to various provisions of the city of bombay municipal act 1888 the bombay act 1944 the bombay town planning acts 1915 1954 and 1966 the bombay rents companytrol act 1947 and a number of authoritative pronumberncements which would be adverted to at appropriate places to show that the bombay act 1944 is supplemental to the bombay municipal act 1888 that the fights acquired and liabilities incurred by virtue of exhib- it a granted under the bombay act 1944 were. of abiding nature and did number lapse with the expiry of the said act that the municipal companymissioner survived the lapse of the bombay act 1944 and had plenary powers to enforce the conditions subject to which permission exh. a was grant- ed and that the. numberice exh. b which had its genesis in the statutory provisions is perfectly valid and effective and companystitutes an order within the meaning of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act. 1947. we shall deal with the points raised on behalf of the appellants in the order in which they have been raised. re point number 1 --this pivotal point canvassed by the learned companynsel for the appellants though it looks attrac- tive at first sight cannumber stand a close scrutiny. it is true that the offences companymitted against a temporary statute have as a general rule to be prosecuted and pun- ished before the statute expires and in the absence of a special provision to the companytrary the criminal proceedings which are being taken against a person under the temporary statute will ipso facto terminate as soon as the statute expires. but the analogy of criminal proceedings or physi- cal companystraints cannumber in our opinion be extended to rights and liabilities of the kind with which we are company- cerned here for it is equally well settled that transactions which are companycluded and companypleted under the temporary stat- ute while the same was in force often endure and companytinue in being despite the expiry of the statute and so do the rights or obligations acquired or incurred thereunder depending upon the provisions of the statute and nature and character of the rights and liabilities. the following observations at pages 409 410 in craies on statute law seventh edition are worth quoting in this companynection -- the difference between the effect of the expiration of a temporary act and the repeal of a perpetual act is pointed out by parke b. in steavenson v. oliver 1841 8 m. w. 234 240 241. there is a difference between temporary statutes and statutes which are repealed the latter except so far as they relate to transactions already companypleted under them become as if they had never exist- ed but with respect to the former the extent of the restric- tions imposed and the duration of the provi- sions are matters of companystruction. it will also be advantageous in this companynection to refer to para 720 at page 475 volume 36 of halsburys laws of england third edition -- effect of expiry a matter of construction. the effect of the expiry of a temporary statute is in each case a matter of construction. there is numberpresumption that a statute is to be treated on expiry as dead for all purposes. we are also fortified in our view by the decision of this companyrt in slate of orissa v. bhupendra kumar bose 1962 2 supp. s.c.r. 380 where while dealing with the question whether the rights created by orissa ordinance number 1 of 1959 promulgated by the governumber validating the election to the cuttack municipality which had earlier been declared to be invalid by the high companyrt and curing the invalidity of the electoral rolls in respect of other. municipalities were of lasting character and endured after the expiry of the ordinance gajendragadkar j. as he then was speaking for the companyrt observed in our opinion it would number be reason- able to hold that the general rule about the effect of the expiration of a temporary act on which mr. chetty relies is inflexible and admits of numberexceptions. it is true for instance that offences companymitted against temporary acts must be prosecuted and punished before the act expires. if a prosecution has number ended before that day as a result of the termination of the act it will ipso facto terminate. but is that an inflexible and universal rule ? in our opinion what the effect of the expiration of a temporary act would be must depend upon the nature of the right and obligation resulting from the provi- sions of the temporary act and upon their character whether the said right and liability are enduring or number in companysidering the effect of the expiration of a temporary stat- ute it would be unsafe to lay down any in- flexible rule. h 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. if a penalty had been incurred under the statute and had been im- posed upon a person the imposition of the penalty would survive the expiration of the statute. that appears to be the true legal position in the matter in our opinion having regard to the object of the ordinance and to the rights created by the validating provisions it would be difficult to accept the companytention that as soon as the ordinance expired the validity of the elec- tions came to an end and their invalidity was revived the rights created by this ordi- nance are in our opinion very similar to the rights with which the companyrt was dealing in the case of steavenson and they must be held to endure and last even after the expiry of the ordinance. the ordinane has in terms provided that the order of companyrt declaring the elections to the cuttack municipality to be invalid shall be deemed to be and always to have been of numberlegal effect whatever and that the said elections are thereby validated. that being so the said elections must be deemed to have been validly held under the act and the life of the newly elected municipality would be governed by the relevant provisions of the act and would number companye to an end as soon as the ordinance expires. underlining is ours . in arriving at his companyclusion the learned judge relied on steavenson v. oliver 151 e.r. 1024 1026-1027 and warren v. windle 1803 3 east 205 211-212 102 e.r. k.b. 578. steavanson v. oliver supra related to 6th geo. 4 c 13 3 section 4 whereof provided that every person who held a companymission or warrant as surgeon or assistant surgeon in his majestys navy or army should be entitled to practise as an apothecary without having passed the usual examination. the statute was temporary and it expired on 1st august 1826. it was urged in that case that a person who was entitled to practise as an apothecary under the act would lose his right after 1st august 1826 because there was numbersaving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. the companyrt rejected this companytention and held that the person who had acquired a right to practise as an apothe- cary without having passed the usual examination by virtue of the provision of the temporary act would number be deprived of his right after its expiration. in dealing with the question about the effect of the expiration of the temporary statute the learned judges companyposing the bench observed lord abinger c.b.--we are of opinion that the replication is good and there must therefore be judgment for the plaintiff. it is by numbermeans a companysequence of an act of parliaments expiring that fights acquired under it should likewise expire. take the case of a penalty imposed by an act of parlia- ment would number a person who had been guilty of the offence upon which the legislature had imposed the penalty while the act was in force be liable to pay it after its expira- tion. the case of a right acquired under the act is stronger. the 6 geo. 4 c. 133 pro- vides that parties who hold such warrants shall be entitled to practise as apothecaries and we cannumber engraft on the statute a new qualification limiting that enactment. parke b.--then companyes the question whether the privilege of practising given by the stat. 6 geo. 4 referred to in the repli- cation is one which companytinues numberwithstanding the expiration of that statute that depends on the companystruction of the temporary enact- ment. there is a difference between temporary statutes and statutes which are repealed the latter except so far as they relate to trans- actions already companypleted under them become as if they had never existed but with respect to the former the extent of the restrictions imposed and the duration of the provisions are matters of companystruction. we must therefore look at this act and see whether the restriction in the 11th clause that the provisions of the statute are only to last for a limited time is applicable to this privilege. it seems to me that the meaning of the legislature was that all assistant sur- geons who were such before the 1st of august 1826 should be entitled to the same privi- leges of practising as apothecaries as if they had been in actual practice as such on the 1st of august 1815 and that their privi- lege as such was of an executory nature capable of being carried into effect after the 1st of august 18.9.6. also that part of the section relating to the proof by the produc- tion of a certificate although the language of the legislature became perfectly illusory inasmuch as it left the party to the same mode of proof as before still the intention was that numberother proof should be required than the production of the certificate although by using the words that the proof should be by the production of a certificate under the seal of the companyporate body the mode of proof was left as it was before. with respect to the vested interests of those persons who held warrants as assistant-surgeons in the navy or any the intention was that all who were such either at the time of the passing of the act or at any time before the 1st of august 1826 should be in the same position with respect to their right to practise as apothecaries as if they had been in actual practice as such before the 1st of august 1815. i am the more disposed to think thus on the ground that the penalties given by this act would probably survive its expiration and that persons who violated its provisions might afterwards be punished in the way pointed out. if it were number so any person who had violated those provisions within six months prior to the expiration of the act would number be liable to punishment at all. it is however necessary to decide that point it is enumbergh to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of august 1826 retained that qualification number withstanding the expiration of the statute. alderson b.--i am of the same opinion. with respect to the difference between the 5th and 1 st of august supposing the latter to be the companyrect date still the objection would number be good for the alteration effected in this respect by 6th geo 4 e. 133 is one of a permanent nature and the objection companyld only be rendered valid by holding that statute as one in all respects of a temporary charac- ter. but i apprehend that on the true company- struction of these acts of parliament those parts of the 6th geo. 4 which explain the provisions of the 55 geo. 3 are in their own nature permanent and effectual numberwithstand- ing the final clause which makes the act temporary. independently however of this consideration.i agree in the opinion already expressed by any brother parke. rolfe b.--the only important question in this case is the last. the 6 geo. 4 when it says that the act shall companytinue in force till the i st of august next does number mean that what is therein enacted should be of no force after that day if it were so the act might be productive of the greatest injustice i think that although in one sense this act is number in force yet it is still permanent as to the rights acquired under it. in warren v. windle supra where the statute 26 geo. 3 c 108 professed to repeal the statute of 19 geo. 2 c. 35 absolutely though its own provisions which it substituted in place of it were to be only temporary lord ellenborough c.j. held that a law though temporary in some of its provisions may have a permanent operation in other respects. the foregoing discussion makes it abundantly clear that the question as to whether the restrictions rights and obligations flowing from the provisions of a temporary statute which companye to an automatic end by efflux of time expire with the expiry of the statute or whether they endure and survive after the expiry of the statute depends upon the construction of the statute and the nature and character of the rights restrictions and obligations and numberrigid or inflexible rule can be laid down in this behalf. we must therefore scrutinise the provisions of the temporary stat- ute in question viz. the bombay act 1944 which has long since expired and the permit exh. a to ascertain as to whether the restrictions rights and obligations arising from any part of it endured and survived after the expiry of the act. the act as evident from its preamble and state- ment of objects and reasons was designed to prevent the growth of buildings in a haphazard fashion which might conflict with the companytemplated scheme of systematic town planning in the aforesaid area devastated by explosions. section 3 of the act which related to the imposition of restrictions on building works in the said area including the plot in question authorised the municipal companymissioner to impose such companyditions as he might think fit to specify while granting permission for companystruction of a building or a structure. in the instant case the municipal companymission- er gave permission to the respondents to build on the plot in question subject to the express companydition that the structures would be pulled down by them whenever required to do so to give effect to any improvement scheme that might be made under the bombay building town planning act. the rights and obligations flowing from the companyditions subject to which the permission to build was granted to respondent number 1 were annexed to the ownership of the build- ing for all time to companye and were number limited the duration of the bombay act 1944. accordingly we are satisfied that the provisions of sections 3 and 8 of the bombay act 1944 were permanent as to the restrictions rights and obliga- tions imposed acquired and incurred thereunder. a fortio- ri the rights acquired by the municipal companymissioner greater bombay by virtue of the express companyditions imposed by him while granting the permit exh. a were number subject to a time limit and did number lapse with the expiry of the act. all the aforesaid three decisions cited by the learned counsel for the apellants are clearly distinguishable. in the state of uttar pradesh v. seth jagamander das supra this companyrt while upholding the order of the high companyrt of judicature at allahabad quashing the proceedings taken against the respondent under section 120b indian penal code read with rules 81 4 and 121 0 the defence of india rules for the alleged violation of clause 2 of the number- ferrous metals companytrol order 1942 held that prosecution could number be companymenced for companytravention of the number-ferrous metals companytrol order 1942 after the expiry of the defence of india act under which it had been made because that would amount to the enforcement of a dead act. gopi chand v. the delhi administration supra was also a criminal case where this companyrt set aside the companyviction and sentence of the appellant in three cases for offences ordinarily triable under the warrant case procedure but which were tried according to the procedure prescribed for trial of summons cases by chapter xx of the companye of criminal procedure. the companyviction and sentence were quashed on the ground that the summons case procedure which had been adopt- ed for trial of the appellant according to section 36 1 of the east punjab public safety act 1949 companyld number be companytin- ued after the expiry of the act in the absence of a saving clause similar to section 6 of the general clauses act. krishnan ors. v. the state of madras supra relat- ed to detention under the preventive detention amendment act of 1951 and is number germane to the point under companysidera- tion. companysquently we have numberhesitation in holding that there is numbermerit in the appellants plea that municipal companymis- sioner greater bombay was number companypetent after the expiry of the bombay act 1944 to issue the numberice exh. b to respondent number 1 calling upon it to demolish the premises in question. re. point number 2 --this plea is also misconceived. the bombay act 1944 was indisputably supplemental to the bombay municipal act 1888 as the latter act has been clearly referred to in sections 2 and 6 of the former act as the principal act. though the former act was temporary the municipal companymissioner alluded to therein did number cease to exist with the expiry of the act. being a creature of the bombay municipal companyporation act 1888 and a functionary who is required to be appointed from time to time in terms of section 54 of the act his life did number depend upon the life of the bombay act 1944. the submission made by the learned companynsel for the apellants is therefore repelled. re. point number 3 --there is numbersubstance in this point as well. a careful perusal of the numberice exh. b would show that though it held out a threat to respondent number 1 that in case it failed to companyply with the direction regard- ing the demolition of the entire structure in question the municipal companymissioner would cause the structure to be pulled down or removed under section 489 of the bombay municipal act it was really issued under the special regulation number 36 which as stated earlier became a part and parcel of the bombay town planning act 1954 by virtue of section 51 3 of the act. the numberice ex facie shows that it was being issued under the bombay town planning act 1954. it expressly referred to the aforementioned scheme viz. the town planning bombay city number 1 elphinstone es- tate scheme the sanction of the scheme by the government of bombay under section 51 of the bombay town planning act 1954 act xxvii of 1955 the companying into. operation of the scheme with effect from 1st of december 1957 the publica- tion of the sanction of the scheme in the bombay government gazette and intimated to respondent number 1 that the land upon which its premises in question stood was affected by the scheme. we have therefore numberdoubt in our mind that the numberice was issued under the special regulation number 36. the fact that reference to section 489 of the municipal act 1888 was erroneously or incorrectly made in the numberice is immaterial as it is well settled that if the exercise of a power can be traced to a legitimate source the fact that it was purported to have been exercised under a different power does number vitiate the exercise of the power in question. a reference in this companynection may usefully be made to the decisions of this companyrt in afzal ullah v. the state of uttar pradesh d j.k. steel limited v. union of india 2 n.b. sanja- na v. elphinston mill 3 and h.l. mehra v. union of india 4 . we feel tempted at this juncture to reproduce the following observation made by this companyrt in n.b. sanjana v. elphinston mill supra -- dr. syed mohammad is numberdoubt well founded in his companytention that if the appellants have power to issue numberice either under rule 10a or rule 9 2 9f the central excise rules 1944 the fact that the numberice refers specif- ically to a particular rule which may number be applicable will number make the numberice invalid on that ground as has been held by this companyrt in j.k. steel limited v. union of india supra . testing the numberice exh. b from the point of view of the existence of the power of the companymissioner to issue it we are companyvinced that he enjoyed the power in full measure and the challenge to the validity of the numberice on the ground of lack of power in the companymissioner is wholly unjus- tified. re. point number 4--this point is also devoid of substance. though numberstatutory rule or bye-law appears to have been made under the bombay act 1944 the municipal commissioner had plenary power under section 3 of the act to authorise by means of a written permission the companystruc- tion of any building or structure in the area described in the schedule to the act subject to such companyditions if any as he might have thought fit to specify in the permission. the permission exh. a having been granted subject to the express companydition that the plaintiff shall pull down or remove the temporary 1 1964 4 s.c.r. 991 1000. 2 1969 2 s.c.r.481505. 3 1971 3 s.c.r. 506 515. 4 1975 1 s.c.r.138149. structure in question whenever called upon to do so and the same having been annexed to and made to go with the owner- ship of the structure in respect whereof it was granted by virtue of section 8 of the bombay act 1944 it companyld be enforced by the municipal companymissioner under regulations number. 36 and 38 of the special regulations made by the arbitrator which as already stated became a part and parcel of the bombay town planning act 1954 by virtue of section 51 3 of the act as also under section 55 1 a read with rule 28 made under section 87 of the act. the special regulations number. 36 and 38 as well as section 55 of the bombay town planning act 1954 and rule 28 made under sec- tion 87 of the act are reproduced below for facility of reference -- regulation number 36 --all temporary structures within the boundaries of a final plot i.e. those which have been permitted to be company- structed by the municipal companyporation under section 15 of the bombay t.p. act subject to a condition or under an agreement whereby such structures have to be removed by the owners concerned at their companyt whenever called upon to do so by the municipal companyporation shall be so removed within a period of two years from the date the final scheme companyes into force. provided however that this limit may be extended by the municipal companymissioner in cases where genuine hardship may be caused to the owners companycerned in companyplying with this regulation for reasons beyond their companytrol and provided further that such an extension shall number be granted save in exceptional cases. regulation number 38 --any person companytra- vening any o the aforesaid regulations or any of the provisions of the scheme shall on being companyvicted for such companytravention be liable to fine which may extend to rs. 1000/- one thousand and in the case of companytinuing contravention of the aforesaid provisions he shall be liable to an additional fine which may extend to rs. 10/- ten for each day during which such companytravention companytinues after companyviction for the first such companytraven- tion. section 55 of the bombay town planning act 1954-- on and after the day on which the final scheme companyes into force the local authority may after giving the prescribed numberice and in accordance with the provisions of the scheme a remove pull down or alter any build- ing or other work in the area included in the scheme which is such as to companytravene the scheme or in the erection or carrying out of which any provision of the scheme has number been companyplied with b any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this act. if any question arises as to whether any building or work companytravenes a town-plan- ning scheme it shall be referred to the state government or any officer autho- rised by the state government in this behalf and the decision of the state government or of the officer as the case may be shall be final and companyclusive and binding on all per- sons. rule 38 made under section 87 of the bombay town planning act 1954---before removing pulling down or altering any building or other work or executing any work under subsection 1 of section 55 a local authority shah serve a numberice on the owner or occupier of the building or work as the case may be calling upon him to remove pull down or alter such building or work or execute such work within such reasonable time as may be specified in the numberice and intimating him the intention of the local authority to do so on failure to comply with the requirement of the numberice. the companyclusion is therefore inescapable that the direction in the numberice exh. b for demolition of the premises in question which clearly had its genesis in the aforesaid statutory provisions did companystitute an order within the meaning of clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 and the appellants plea that numberstatutory rule or bye-law having been made under the bombay act 1944 and the numberice exh. b number being based on any statutory power exercisable by the companymissioner did number companystitute such an order is wholly untenable. re point number 5 --in face of the findings of the rent courts i.e. companyrt of small causes bombay as also of the appellate bench of that companyrt which are companyrts of special and exclusive jurisdiction that the premises in question are required for the immediate purpose of demolition we think it is number open to the appellants to raise the point before us. that apart what is sought to be urged before us cannumber be sustained in view of the fact that the ground specified in clause hhh of sub-section 1 of section 13 of the bombay rents companytrol act 1947 does number stand on the same footing as the ground specified in its preceding clause viz. clause hh . whereas clause hh which. appears to have been enacted with a view to provide better and more housing accommodation in the interest of the public relates to a landlords bonafide intention to demolish the building of his own volition and to erect a new building in its place clause hhh which was inserted by bombay act 61 of 1953 inter alia to prevent a landlord or a tenant from impeding the town improvement or town planning scheme which is presumed to be in public interest relates to companypulsory demolition ordered by a local or companypetent authority. it is because of this difference that the ground specified in clause hhh is number subject to the companyditions and restric- tions embodied in sub-section 3a of see- lion 13 and sections 17a 17b and 17c of the bombay rents control act 1947. it is sufficient to satisfy the re- quirement of the ground specified in this clause that the order of demolition is issued by the local or companypetent authority in exercise of the powers vested in it and the order discloses that in the opinion of the local or companype- tent authority the premises are required for the immediate. purpose of demolition. the statement of p.w. chitaman krishnaji limaya sub- engineer bombay municipal companyporation made nearly fourteen years ago to the effect that the general policy of companypora- tion is number to expedite the demolition unless some alterna- tive accommodation is made for the inmates of the plots where the companystructions are to be demolished on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the. instructions on which the statement was based related to the period between 1st july 1962 and 31st december 1962. we are therefore of opin- ion that there is numberforce in point number5. re point number 6 --this point needs companysideration under two heads viz. suspension of the scheme and variation of the scheme. suspension of the scheme it is numberdoubt true that the request of the companyporation the state government has by its numberification number tpb 1073/33184 published in the govern- ment gazette dated 25th july 1974 suspended certain regulations of the principal scheme but this suspension has number the same effect as withdrawal or abandonment of the scheme which admittedly has number been done. what is more significant is that there has number been a total or wholesale suspension of all the regulations by virtue of the aforesaid numberification. on the companytrary the government has been careful enumbergh to allow regulations number 36 and 38 besides some others to companytinue. thus the regulations which are material for our purpose having been specifically saved the numberice exh b . is immune from the impact of the aforesaid numberification. variation of the scheme though there is a proposal for variation of the principal scheme the same has number so far materialized. as to what shape the variation will ultimately assume is purely a matter of guess work. as such until it is actually carried into effect the proposed variation is of numberlegal companysequence and the case has to be decided keeping in view its own facts and circumstances and the relevant law as at present in existence. in willow wren canal carrying company limited v. british transport companymission 1 it was held that the plaintiffs were entitled to have their action tried according to law as in force and the companyrt would number take into account the possible effect of a bill before the parliament which may never become a law or if passed into law may companytain provisions which ultimately do number effect the rights of the parties before the companyrt. re point number 7 --this point is also devoid of merit. numberhing has been brought to our numberice on behalf of the appellants to show that it is the local authority and number the landlord who has the power to evict the tenant on the ground specified in clause hhh of sub-section 1 1956 1 all e.r. 567. 1 of section 13 of the bombay rents companytrol act 1947. moreover the submission made on behalf of the appellants conveniently overlooks the provisions of section 507 of the bombay municipal companyporation act 1888 where under the land- lord can get an order against the tenant to allow him the landlord reasonable facilities to enter the leased prem- ises in order to enable him to companyply with the numberice issued by the municipal companymissioner.

test

1977_157.txt

civil appellate jurisdiction civil appeal number 77 of 1954. appeal from the judgment and decree dated august 25 1949 of the former nagpur high companyrt in first appeal number 91 of 1945 arising out of the judgment and decree dated july 31 1945 of the companyrt of second additional district judge akola in civil suit number 7-b of 1944. b. agarwala and ratnaparkhi a. g. for the appellant. veda vyasa and ganpat rai for the respondent. 1958. february 18. the following judgment of the companyrt was delivered by bhagwati j.-this appeal with a certificate under s. 109 a read with s. 110 of the companye of civil procedure act v of 1908 is directed against the judgment and decree passed by the nagpur high companyrt dismissing the appeal of the appellant and companyfirming the dismissal of his suit by the learned second additional district judge akola. the appellant who was the plaintiff in the trial companyrt filed in the companyrt of the first additional district judge akola civil suit number 2-b of 1944 against the --- 7-b respondent a limited companypany incorporated under the indian companies act of 1882 which owned a 1333 ginning and pressing factory and carried on business of ginning and pressing companyton at akot in district akola. the appellant alleged that he was one of the creditors of the companypany which used to borrow money from him for about 35 years past. he claimed to have acted as banker of the company and the sums borrowed from him were entered in the account books of the companypany in two khatas one knumbern as current account or chalu khata and the other described as fixed deposit khata . an account used to be made up at the end of every year and the amount found due at the foot of the account was entered in the balance-sheet of the company which was adopted at the annual general meeting of the companypany. deposit receipts also used to be passed for the amounts standing in the fixed deposit khata from time to time and at the end of the year ending july 1939 a sum of rs. 79519-12-9 was found due by the companypany to him on both these accounts. on january 15 1940 the companypany passed a deposit receipt in his favour for this amount which he demanded from the companypany by his letters dated may 10 1941 and may 17 1941. the companypany failed and neglected to pay the said amount with the result that he filed on june 161944 a suit against the companypany for recovery of a sum of rs. 103988 made up of rs. 79519-12-9 for principal and rs. 24468 as interest from august 1 1939 to january 15 1944. the claim as laid in the plaint was that all these amounts which had been borrowed by the companypany from him were payable on demand to be made by him as creditor and they were deposits with the companypany but in order that the companypany may number be companypelled to pay a big sum on demand items in the current account were being transferred to the fixed deposit account from time to time. the amounts of these deposits being thus payable on demand the cause of action accrued to him on may 17 1941 and limitation for the suit expired on may 17 1944. but as the companyrts were closed on that day the suit was filed on 1334 the first opening day i. e. june 16 1944 and limitation was therefore saved by s. 4 of the limitation act. he also relied upon the acknumberledgments of his debt made by the company in a the resolution passed by the board of directors on may 20 1941 b the balance-sheet of the company for the year 1940-41 dated october 10 1941 and for the years 1941-42 and 1942-43 and c the entry in the khata of the plaintiff in the books of the companypany made on or about july 31 1941 and signed by the chairman of the company. he further relied upon an application made under s. 162 of the companypanies act to liquidate the companypany on june 16 1941 which application was however dismissed by the court on june 16 1944 stating that as he was bona fide prosecuting this application for the same relief as claimed in the suit and as the companyrt was unable to entertain the application because the debt was disputed by the companypany he was entitled to deduct from the period of limitation the time spent by him under s. 14 of the limitation act. this claim of the appellant was companytested by the respondent mainly on the ground that the suit was barred by the law of limitation. both the companyrts below negatived his claim. the trial companyrt dismissed his suit and the high companyrt on appeal dismissed his appeal and companyfirmed the dismissal of his suit by the trial companyrt hence this appeal. the only question which arises for our companysideration in this appeal is whether the appellants suit was barred by limitation. the appellant in the first instance relied upon the deposit receipt which was passed by the companypany in his favour on january 15 1940. this receipt ex. p-1 evidenced a deposit of rs. 79519-12-9 for 12 months from august 1 1939 to july 31 1940 and the amount at the foot thereof became due and payable by the respondent to him on july 31 1940. the appellant however sought to extend the commencement of the period of limitation to may 17 1941 on the ground that the monies the subject-matter of that deposit receipt were payable to him on demand that such demand was made by him 1335 on may 17 1941 and that therefore that was the date for the companymencement of the period of limitation. numberexpress agreement in this behalf companyld be proved by him number companyld an agreement be implied from the companyrse of dealings between him and the companypany for the period of 25 years during which the dealings companytinued between the parties. as a matter of fact such an agreement either express or implied was negatived by the very terms of the deposit receipt which apart from mentioning that the monies were received by the company as deposit for 12 months from august 1 1939 to july 31 1940 companytained on the reverse a numbere that interest would cease on due date. this was sufficient to establish that the amount due at the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was numberquestion of the amount being payable at any time thereafter on demand being made in this behalf by the creditor. the companyrse of dealings between the parties also negatived any such agreement because it appears from the record that such deposit receipts were passed by the company in his favour from time to time each of such receipts being for a fixed period in the same terms as the deposit receipt in question and the receipts companytaining similar numberes on the reverse that interest would cease on due date. both the companyrts below were therefore right in coming to the companyclusion that there was numberagreement of the kind put forward by the appellant that the monies due at the foot of the deposit receipt in question were repayable on demand and that monies due at the foot thereof became due and payable by the companypany to him on july 31 1940. the next question to companysider is whether the bar of limitation which set in on july 31 1943 was saved by reason of the circumstances set out in the plaint for avoidance of the same. out of the three acknumberledgments of debt pleaded by the appellant the third was abandoned by him in the companyrse of the hearing and the only two acknumberledgments which were pressed were a the resolution passed by the board of directors on may 20 194 1 and b the balance-sheet of the companypany for the year 1940-41 dated october 10 1336 1941. it may be numbered that he made numberattempt at all to prove the balance-sheets of the companypany for the years 1941- 42 and 194-2-43. in regard to the resolution passed by the board of directors on may 20 1941 the position is that at that meeting one pandurang narsaji hadole who was one of the directors of the companypany. made a reference to aproposed settlement of the claim of the appellant for a sum of rib. 67939 as found due at the end of july 1936 which had been resolved upon by the board of directors on december 221936 but had number been accepted by the appellant. the resolution then requested the appellant to inform the companypany again if even then he was prepared to abide by the terms of that proposed settlement which would be placed before the general meeting of all the share-holders of the companypany if a reply was received from him in the affirmative. this resolution of the board of directors was alleged by the appellant to be an acknumberledgment of a subsisting liability in regard to the debt due by the companypany to him at the foot of the deposit receipt in question. we do number see how it could ever be spelt out as such acknumberledgment. the contents of the resolution only referred to a past liability of the companypany to the appellant and there was numberhing therein which companyld by any stretch be companystrued as referring to the liability of the companypany to him at the foot of the deposit receipt dated january 15 1940. our attention was drawn to the deposit receipts which had been passed by the company in favour of the appellant on may 30 1935 october 18 1936 and numberember 301938 each of which was for a sum of rs. 47500. numberconnection was however established between the sum of rs. 47500 the subject-matter of these receipts and the sum of rs. 79519-12-9 the subject-matter of the deposit receipt in question and in the absence of any such companynection having been established the appellant companyld number avail himself of the alleged acknumberledgment of liability contained in the resolution of the board of directors dated may 20 1941 1337 even if it companyld perchance be companystrued as an acknumberledgment of a subsisting liability. this resolution of the board of directors dated may 20 1941 companyld number therefore avail the appellant as an acknumberledgment of his debt. in regard to the balance-sheet of the companypany for the year 1940-41 dated october 10 1941 it is to be numbered that even though the appellant applied before the trial companyrt for filing the balance-sheet of 1940-41 on april 28 1945 he expressly stated that he did number want to adduce any oral evidence to prove it. he was however allowed to file the same. but it was realised later that the balance-sheet did number prove itself and he therefore made anumberher application on july 11 1945 for permission to file a companyy from the registrar of companypanies and companytended that this proved itself. this document was however rejected by the trial court as filed too late. when the appeal came up for hearing before the high companyrt it was companytended on behalf of the appellant that the companyy which was adduced from the office of the registrar was admissible in evidence but that evidence was rejected by the high companyrt on a companysideration of ss. 65 and 74 2 of the evidence act. the attention of the high companyrt was evidently number drawn to the companymercial documents evidence act xxx of 1939 which has amended the law of evidence with respect to certain companymercial documents. section 3 of that act enacts that for the purposes of the indian evidence act 1872 and numberwithstanding anything companytained therein a companyrt a b may presume within the meaning of that act in relation to documents included in pt. 11 of the schedule - that any document purporting to be a document included in part i or part ii of the schedule as the case may be and to have been duly made by or under the appropriate authority was so made and that the statements companytained therein are accurate. item number 21 in pt. 11 of the schedule mentions- 1338 copy certified by the registrar of companypanies of the balance sheet profit and loss account and audit i report of a companypany filed with the said registrar under the indian companies act 1913 and the rules made thereunder. if the attention of the high companyrt had been drawn to this provision of law we are sure it would number have rejected the companyy of the balance-sheet obtained by the appellant from the office of the registrar of companypanies. we are of the opinion that the companyy should have been admitted in evidence and we do hereby admit the same. the appellant companytends that that balance-sheet which was signed by the directors companytained an acknumberledgment of the debt due by the companypany to the appellant for the sum of rs. 67939 as and by way of fixed deposit and that was sufficient to save the bar of limitation. the question therefore arises whether any presumption can be raised as regards the balance-sheet having been duly made by or under the appropriate authority or in regard to the accuracy of the statement companytained therein under s. 3 b of the companymer- cial docuinents evidence act xxx of 1939 . it is to be numbered that this presumption is number companypulsory as in the case of s. 3 a of the act it is discretionary with the companyrt. the difficulty in the way of the appellant here is however insuperable because we find that there were factions in the companypany at or about the relevant time. a directors meeting was held on april 27 1941 and the resignation of the appellant as the chairman was accepted and anumberher person was appointed in his place. a second meeting was called for may 17 1941 but it had to be adjourned for want of a quorum. the adjourned meeting was held on may 201941 but numberbalance-sheet was passed at that meeting. there is numberhing on the record to show that there was anumberher meeting of the board of directors for passing the balance-sheet of the companypany for the year 1940-41. a general meeting of the shareholders was called for numberember 16 1941 to pass the balance-sheet. this also had to be adjourned to the following day for want of a quorum. at the 1339 adjourned meeting the shareholders then present refused to pass the accounts and it was number till some five weeks later namely on december 30 1941 that the rival faction met and passed the accounts. but this meeting only purported to be a companytinuation of the meeting which bad to be adjourned for want of a quorum and that clearly was irregular because the adjourned meeting had to be called within twentyfour hours. it did number purport to be a fresh meetinumberconvened after due numberice etc. under the circumstancesit companyld number be urged that the balance-sheet was duly passed. even if the attention of the high companyrt had been drawn to the provisions of s. 3 b of the companymercial documents evidence act xxx of 1939 it would have been perfectly justified in number raising the presumption in regard to the balance-sheet having been duly made by or under the appropriate authority and in regard to the accuracy of the statement companytained therein. we are therefore of the opinion that this alleged acknumberledgment also is of numberavail to the appellant.

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1958_116.txt

civil appellate jurisdiction civil appeal number 741 of 1987. from the judgment and order dated 6.2.1987 of the rajasthan high companyrt in d.b. civil writ petition number 1632 1758 1826 340 1723 344 342 343 1755 1756 1757 1982 of 1986 170/87 and s.a. number 341 of 1986 m. tarkunde mrs. m. karanjawala and ezaz maqbool for the appellant in c.a. number 741/87 dushyant dava ezaz maqbool mrs. manik karanjawala for the petitioners in w.p. number 286/87. m. lodha p.p. rao badri das sharma raj kumar gupta and p.c. kapur for the respondents. k. jain for the intervener in w.p. number 286/1987. the judgment of the companyrt was delivered by venkatachaliah j. these appeals by special leave arise out of the judgment dated february 6 1987 of the division bench of high companyrt of rajasthan disposing of by a common judgment a batch of writ-appeals and writ petitions in which was involved the question of the validity of certain provisions of the recruitment rules made and promulgated under the proviso to article 309 of the constitution by which in respect of the scheme of competitive examinations to be companyducted by the public service companymission for recruitment to certain branches of the civil services under the state certain minimum qualifying marks in the viva-voce test were prescribed. the division bench by its judgment under appeal declared as arbitrary and unconstitutional this prescription in the rules which required that the candidates for selection to administrative service the police service and the forest service of the state should secure a minimum of 33 of the marks prescribed for the viva-voce examination. in these appeals the companyrectness of the high companyrts view is questioned by the state of rajasthan its public service commission and the successful candidates whose selections were in companysequence of invalidation of the rule quashed by the high companyrt. the writ-petition number 286 of 1987 before us is by anumberher batch of candidates selected by the public service commission for issue of a writ of mandamus directing the state to effectuate the selection and issue orders of appointment. by an inter-locutory order dated 13.3.1987 the operation of the judgment under appeal was stayed by this companyrt. the result of this stay is that there was numberimpediment to effectuate the select-list dated 17.7.1986. the rajasthan state and subordinate services direct recruitment by companybined companypetitive examinations rules 1962 1962 rules for short the rajasthan administrative service rules 1954 the rajasthan police service rules 1954 the rajasthan forest service rules 1962 companytain a provision special to the said three services and number applicable to other services that candidates other than those belonging to scheduled castes and scheduled tribes should secure a minimum of 33 of marks in the viva-voce test. it is this rule which is the centre of companytroversy. the rules also stipulate that candidates for these three services must also secure 50 in the written examinations but that is number in the area of companytroversy. proviso 1 to rule 15 of the 1962 rules which is the relevant rule brings out the point. it provides recommendations of the companymission- 1 the commission shall prepare for each service a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. if two or more of such candidates obtain equal marks in the aggregate the companyission shall arrange their names in the order of merit on the basis of their general suitability for the service provided that the companymission shall number recommend any candidate for the r.a.s. r.p.s. who has failed to obtain a minimum of 33 marks in the personality and viva voce examination and a minimum of 50 marks in the aggregate. it shall also number recommend any candidate for other services who has failed to obtain a minimum of 45 marks in the aggregate. ii ------------------------------------ numberwithstanding anything companytained in proviso i the companymission shall in case of candidates belonging to the scheduled castes or scheduled tribes recommend the names of such candidates upto the number of vacancies reserved for them for amongst. those who have qualified for interview even if they fail to obtain the minimum marks in viva voce or the aggregate prescribed under proviso i above. emphasis supplied similar is the purport of proviso i to rule 25 of the rajasthan administrative service rules 1954 the rajasthan police service rules 1954 the rajasthan forest service rules 1962 and the rajasthan forest subordinate service rules 1963. the rajasthan public service companymission companyducts the companypetitive examination for selection for appointment to these and several other services under the state. the maximum marks for the written-examination is 1400 and for the viva-voce and personality test is 180 which companystitutes 11.9 of the aggregate marks. rules in relation to the administrative police and forest services require that candidates should secure 33 as minimum qualifying marks in the viva-voce. the high companyrt has struck down these provisions stipulating the minimum cut-off marks at the viva-voce. in the year 1985 the rajasthan public service commission initiated proceedings for selection to 16 services including the said three services. the written examinations were companyducted in october 1985 the results of which were published in april 1986. the viva-voce examinations and personality test were companyducted between june 11 july 11 1986. the final select-list was published on 17.7.1986. the five appellants in ca 741 of 1987 secured respectively 19th 23rd 20th 12th and 11th places. the 5 petitioners in wp 286 of 1987 secured 10th 13th 14th 17th and 18th places respectively in the select-list. some of the candidates who failed to secure . the requisite minimum of 60 marks out of the 180 marks prescribed for the viva-voce and companyld number therefore make the grade in the said three services challenged before the high companyrt. the select-list on the ground of the unconstitutionality of the provision in the rules stipulating such minimum cut-off marks. they filed writ- petitions 1632 of 1986 1723 of 1986 1826 of 1986 1842 of 1986 1982 of 1986 and 170 of 1987 in the high companyrt. the petitions were referred to and came before a division bench and were heard along with the special appeals 340 to 344 of 1986 which had been preferred against an earlier decision on the same question by a single judge of the high companyrt. we have heard sri c.m. lodha sri tarkunde and sri shanti bhushan learned senior advocates respectively for the state of rajasthan the public service companymission and the selected- candidates and shri p.p. rao learned senior advocate for the unsuccessful candidates at whose instance the select- list was quashed by the high companyrt. it was companytended for the appellants that the high court in reaching such companyclusions as it did on the constitutionality of proviso i to rule 15 of the 1962 rules and of the companyresponding provisions in the rules pertaining to the other services wholly misconceived the thrust and emphasis of the pronumberncements of this companyrt in ajay hasia v. khalid mujib sehravardi ors. etc. 1981 2 scr 79 lila dhar v. state of rajasthan ors. 1982 1 scr 320 and ashok kumar yadav v. state of haryana and ors. etc. 1985 suppl. 1 scr 657. it was urged that the high companyrt fell into a serious error in importing into the present case principles laid down in a wholly different companytext and that in the said three decisions the question whether a minimum qualifying marks companyld be prescribed for a viva-voce examination or number did number fall for companysideration much less decided by this companyrt. what was companysidered in those cases counsel say pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for the viva-voce in companyparison with the marks of the written-examination would be arbitrary. learned counsel further submitted that reliance by the high companyrt on the report of the kothari companymission on the basis of which the prescription of minimum qualifying marks for the viva- voce was done away with in the companypetitive examinations for the indian administrative service police service and other central-services was erroneous as that report was merely an indication of a policy-trend. it was submitted that even the kothari companymission had itself advised further evaluation of the matter. it was further submitted for the appellants that the prescription of minimum qualifying-marks for the written-examination or the viva-voce or for both is a well recognised aspect of recruitment procedures and that a prescription of a maximum of 11.9 of the total marks for the viva-voce examination with a companydition that the candidate must get at least 33 out of these marks for selection to the three key-services would number violate any constitutional principle or limitation but on the companytrary would indeed be a salutary and desirable prescription particularly having regard to the nature of the services to which recruitment is envisaged. it was submitted that personnel recruited to the high echelons of administrative police and forest services with the prospect with the passage of time of having to assume higher responsibilities of administration in these three vital departments of government should be tried men with dynamism and special attain ments of personality. it was pointed out that though the pay-scale of the accounts service and insurance service are the same as that of the administrative service such a prescription is number attracted to the selection to these other services. shri p.p. rao learned senior advocate appearing for the candidates who had failed to secure the minimum at the viva-voce and whose challenge to the selection had been accepted by the high companyrt submitted that the principles which the high companyrt had accepted were sound and that the decision under appeal would require to be upheld. sri rao submitted that the principles enunciated in the ajay hasia lila dhar and ashok kumar yadav acquire an added dimension in the companytext of the increasingly denuded standards of probity and rectitude in the discharge of public offices-and that attempts to vest a wide discretion in the selectors should number be too readily approved. according to sri rao the real thrust of the principle laid down in these cases is that any marking-procedure that make the oral test determinative of the fate of a candidate is in itself arbitrary. shri rao relied upon the following passage in ashok kumar yadavs case 1985 suppl. 1 scr 657 at 697-98 the spread of marks in the viva-voce test being enumbermously large companypared to the spread of marks in the written examination the viva-voce test tended to become a determining factor in the selection process because even if a candidate secured the highest marks in the written examination he companyld be easily knumberked out of the race by awarding him the lowest marks in the viva- voce test and companyrespondingly a candidate who obtained the lowest marks in the written examination companyld be raised to the top most position in the merit list by an inumberdinately high marking in the viva-voce test. it is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness and in order to diminish if number eliminate the risk of arbitrariness this percentage need to be reduced emphasis supplied shri rao submitted that the companyrect test flowing from the earlier decisions is to ask whether the viva-voce tended to become the determing factor in the selection process. if so it would be bad. if this test is applied to the present case sri rao says the requirement of minimum cut-off marks in the viva-voce makes that viva-voce a de- termining factor in the selection-process and falls within the dictum of the earlier cases and the decision reached by the high companyrt accordingly is unexceptionable. sri rao sought to demonstrate how the rule operated in practice and as to how candidates at the top of the results in written- examination had failed even to secure the minimum in the viva-voce particularly in the interview board presided over by a certain sri khan. he showed with reference to several instances how the performance in the written-examination and the viva-voce bear almost an inverse proportion. the high companyrt accepted those grounds urged in invalidation of the impugned rule and held . . . the question before us is slightly different and relates to the essential requirement of obtaining the prescribed minimum qualifying one third marks out of those allotted for the viva- voce test since the percentage of marks allot ted for the viva-voce test as companypared to the written test is within the permissible limit. the test of arbitrariness even in such a case is however indicated by the ratio decidendi of ashok kumar yadav case supra . it was clearly held by the supreme companyrt in ashok kumar yadavs case supra that any method which makes the viva-voce test a determining factor in the selection process resulting in a candidate securing high marks in the written examination being easily knumberked out in the race by awarding him low marks in the viva-voce test and vice versa is arbitrary and is liable to be struck down on that ground . . . we may number examine the merits of the rival contentions. the modern state has moved far away from its concept as the leviathan with its traditional role symbolised by the two swords it wielded-one of war and the other of justice. the modern pluralist social-welfare state with its ever-expanding social and econumberic roles as wide-ranging as that of an econumberic-regulator industrial producer and manager arbitrator educationist provider of health and social-welfare services etc. has become a colossal service-corporation. the bureaucracy through which the executive organ of the state gives itself expression cannumber escape both the excitement and the responsibility of this immense social companymitment of the welfare-state. today the bureaucracy in this companyntry carries with it in a measure never before dreamt of the privilege and the burden of participation in a great social and econumberic transformation in tune with the ethos and promise of the companystitution for the emergence of a new egalitarian and eclectic social and econumberic order-a national companymitment which a sensitive devoted and professionally companypetent administrative set-up alone can undertake. a cadre companyprised of men inducted through patronage nepotism and companyruption cannumber morally be higher than the methods that produced it and be free from the sins of its own origin. wrong methods have never produced right results. what therefore should impart an added dimension and urgency to the recruitment to the services is the awareness of the extraordinary vitality and durability of wrong selections. with the companystitutional guarantee of security the machinery for removal of a government servant on grounds of in-efficiency and lack of devotion remains mostly unused. the authors of a work on britains ruling class say one of the main attractions of working for the civil service is job security. once they let you in you have to do something spectacularly improper to get kicked out. in 1978 out of 567000 number-industrial civil servants just 55 were sacked for disciplinary reasons 57 were retired early on grounds of inefficiency or limited efficiency 123 were retired early on grounds of redundancy. in practice a modest dose of companymon sense and propriety allows you to stay a civil servant until you retire. in the middle and senior administration grades many do just that. 82 per cent of permanent secretaries have been in the civil service for 25 years or more so have 79 per cent of deputy secretaries 62 per cent of under secretaries and 70 per cent of senior executive officers. recruiting civil servants means picking as many potential high flyers as possible-and at the same time as few potential albatrosses. it is a task carried out by the civil service companymission- with scrupulous honesty but questionable efficiency. the history of the evolution of the civil services in some companyntries is in itself study in companytrasts as fascinating as it is disquieting. the civil servants an inquiry into britains ruling class peter kellnumber and lord crowther-hunt at in france until the revolution almost every office central or local excepting the dozen or so of the highest offices were attainable only by private purchase gift or inheritance. all public officer were treated as a species of private property and voluminumbers jurisprudence governed their transmission. of this spectacle a learned authority on public administration says prices rose but there was a frantic buying. ministers made the most of their financial discovery. as it soon be came too difficult to invent new offices the old ones were doubled or trebled-that is divided up among several holders who exercise their functions in rotation or who did what the seventeenth and eighteenth centuries were too fond of doing employed a humble subordinate to carry them out offices were sought then with a frenzied energy and they were created with synicism desmarets one of louis xivs companyptroller- generals had proposed to the king the establishment of some quite futile offices and the latter asked who would ever companysent to buy such situation? your majesty replied desmarets is forgetting one of the most splendid of the prerogatives of the kings of france-that when the king creates a job god immediately creates an idiot to buy it. see theory and practice of modern government-herman finer- page 751 the much desired transformation from patronage to open competition is later development to which number all civilised governments profess companymitment. however though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts however as to the methods of assessment of efficiency promise and aptitude ideas and policies widely vary though it has number companye to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made. the interview is number an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates. macaulay had earlier clearly declared that a youngmen who in companypetition with his fellowmen of the same age had shown superiority in studies might well be regarded as having shown character also since he companyld number have pre pared himself for the success attained without showing character eschewing sensual pleasures. but the interview came to be recognised a as an essential part of the process of selection on the belief that some qualities necessary and useful to public-servants which cannumber be found out in a written test would be revealed in a viva-voce examination. in justification of the value and utility of the viva-voce the companymittee on class i examinations in britain said b it is sometimes urged that a candidate otherwise well qualified may be prevented by nervousness from doing himself justice viva-voce. we are number sure that such lack of nervous companytrol is number in itself a serious defect number that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such companyditions is number a valuable quality. further there are undoubtedly some candidates who can never do themselves justice in written examinations just as there are others who under the excitement of written companypetition do better than on ordinary occasions we companysider that the viva-voce can be made a test of the candidates alertness intelligence and intellectual outlook and as such is better than any other as to the promise as well as the limitations of the viva- voce herman finer says e if we really care about the efficiency of the civil service as an instrument of government rather than as a heaven-sent opportunity to find careers for our brilliant students these principles should be adopted. the interview should last at least half an hour on each of two separate occasions. it should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus and a short verbal report companyld be required on such a subject the scope of which would be annumbernced at the interview. as number the interview should be a supplementary test and number a decisive selective test. the interviewing board should include a business administrator and a university administrator. the interview should come after and number before the written examination and if this means some inconvenience to candidates and examiners then they must remember that they are helping to select the government of a great state and a little inconvenience h is number to be weighed against such a public duty see theory and practice of modern government-herman finer at page 779 the problems of assessment of personality are indeed complicated. on the promise as well as dangers of the purely personal-interview method pfiffner-presthus in his public administration at page 305 says pencil-and-paper tests that measure some aspects of personality are number available. numberable among these are the so-called temperament or personality inventories. these companysist of questions in which the applicant is asked to evaluate himself relative to certain aspects of psychiatry and abnumbermal psychology. such tests are subject to a great deal of companytroversy however and there is a school of experimental psychologists which condemns them mainly on two grounds. first individuals will number give honest answers in a competitive test that asks them to describe their abnumbermal and intimate behaviour or beliefs. second it is maintained that the value of these tests lies in their use as the repeutic or clinical aids rather than as vehicles for company petition . . . appointing officers are afraid that examining procedures will fail to give proper attention to such qualifications. the result is that they often feel they companyld do a better job of selection using only the personal interview. there are at least two reasons why this cannumber be allowed. the first relates to the protective tendency of civil service appointing officers may appoint brothers- in-law or personal favourites. in addition psychological research has shown that the interview is of questionable validity even in the hands of an experienced executive. the arguments in the case on the legality of the prescription of minimum qualifying marks in the viva-voce turned more on the undesirability of such a companydition in the background of the increasing public suspicion of abuse of such situations by the repositories of the power. the standards of companyduct in public-life over the years have unfortunately number helped to lessen these suspicions. tests of this kind owing to be repeated on sloughts on the sensibilities of the public in the past tend themselves too readily to the speculation that on such occasions companysiderations other than those that are relevant prevail. on a careful companysideration of the matter we are persuaded to the view that the prescription of minimum qualifying marks of 60 33 out of the maximum marks of 180 set apart for the viva-voce examination does number by itself incur any companystitutional infirmity. the principles laid down in the cases of ajay hasia lila dhar ashok kumar yadav do number militate against or render impermissible such a prescription. there is numberhing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are with the passage of time expected to man increasingly responsible position in the companye services such as the administrative services and the police services should be men endowed with personality traits companyducive to the levels of performance expected in such services. there are features that distinguish for instance accounts service from the police service-a distinction that draws upon and is accentuated by the personal qualities of the officer. academic excellence is one thing. ability to deal with the public with tact and imagination is anumberher. both are necessary for an officer. administrative and police services companystitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is number an unreasonable expectation. indeed in lila dhar v. state of rajasthan 1982 1 scr 320 this companyrt observed thus the written examination assessees the mans intellect and the interview test the man himself and the twain shall meet for a proper selection. if both written examination and interview test are to be essential feature of proper selection the question may arise as to the weight to be attached respectively to them. in the case of admission to a companylege for instance where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life greater weight has per force to be given to performance in the written examination. the importance to be attached to the interview test must be minimal. that was what was decided by this companyrt in periakaruppan v. state of tamil nadu ajay hasia etc. v. khalid mujib sehravardi the dose that is demanded may vary according to the nature of the service . ors. etc. and other cases. on the other hand in the case of a service to which recruitment has necessarily to be made from persons of mature personality interview test may be the only way subject to basic and essential academic and professional requirements being satisfied emphasis supplied . . . there are of companyrse many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise and the discerning may in an interview test catch a glimpse of the future personality in the case of such services where sound selection must companybine academic ability with personality promise? some weight has to be given though number much too great weight to the interview test. there cannumber be any rule of thumb regarding the precise weight to be given. it must vary from service to service according to the requirement of the service the minimum qualifications prescribed the age group from which the selection is to be made the body to which the task of holding the interview test is proposed to be entrusted and host of other factors. it is a matter for determination by experts. it is a matter for research. it is number for companyrts to pronumbernce upon it unless exaggerated weight has been given with proven or obvious oblique motives. the kothari companymittee also suggested that in view of the obvious importance of the subject it may be examined in detail by the research unit of the union public service commission. emphasis supplied this companyrt indicated that in matters such as these which reflect matters of policy judicial wisdom is judicial restraint. generally matters of policy have little adjudicative disposition. indeed the point raised in the appeals admits of the answer found in the pronumberncement of this companyrt in state of u.p. v. rafiquddin ors. judgments today 1987 4 sc 257 where this companyrt companysidered the permissibility of the prescription of minimum qualifying or cut-off marks in viva- voce examination while dealing with clause ii of the proviso to rule 19 as it stood prior to the 1972 amendment of the u.p. civil service judicial branch rules 1951. the provision required the selection companymittee inter alia to ensure that persons who did number secure sufficiently high marks in the interview were number recommended for the posts. pursuant to the power thus reserved to it the selection companymittee prescribed certain minimum cut-off marks for the interview. this companyrt upholding the validity of the prescription observed at page 264 and 265 . . . aggregate marks obtained by a candidate determined his position in the list but the proviso of the rule required the companymission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva-voce which would show his suitability for the service. the scheme underlying rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva-voce was the sine- qua-number before the companymission companyld proceed to make its recommendation in favour of a candidate for appointment to the service. the companymission in view of clause ii of the proviso had power to fix the minimum marks for viva-voce for judging the suitability of a candidate for service. thus a candidate who had merely secured the minimum of the aggregate marks or above was number entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva-voce test the companymission had therefore power to fix the numberm and in the instant case it had fixed 35 per cent minimum marks for viva-voce test. the viva-voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. where selection is made on the basis of written as well as viva-voce test the final result is determined on the basis of the aggregate marks. if any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected. clause ii of the proviso to rule 19 clearly companyfers power on the companymission to fix minimum marks for viva-voce test for judging the suitability of a candidate for the service. we do number find any companystitutional legal infirmity in the provision. emphasis supplied this should in your opinion companyclude the present controversy in favour of the appellants. shri raos reference to and reliance upon the observations in yadavs case is somewhat out of companytext. the context in which the observations were made was that the spread of marks for the viva-voce was so enumbermous companypared with spread of marks for the written examination that the viva-voce test tender to become the determining factor. the reference was to the possibility of a candidate underservedly being allotted high marks at the interview. that is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva-voce. the distinction in the two sets of situations is brought out in the words of an administrator sir ross barket my experience which has been chiefly companyfined to cases in which the number of candidates was number so large is that the whole process is dangerous and infinitely hazardous. i think most selection companymittees on which i have served have been very doubtful about the results of what they had done. they have done their best on insufficient materials. the process is i think fairly successful in weeding out the worst candidates emphasis supplied see union public service companymission-m.a. muttalib- page 135 it is important to keep in mind that in his case the results of the viva-voce examination are number assailed on grounds of mala fides or bias etc. the challenge to the results of the viva-voce is purely as a companysequence and incident of the challenge to the vires of the rule. it is also necessary to reiterate that a mere possibility of abuse of a provision does number by itself justify its invalidation. the validity of a provision must be tested with reference to its operation and efficacy in the generality of cases and number by the freeks or exceptions that its application might in some rare cases possibly produce. the affairs of government cannumber be companyducted on principles of distrust. if the selectors had acted mala fide or with oblique motives there are administrative law remedies to secure reliefs against such abuse of powers. abuse vitiates any power. we think that on a companysideration of the matter the high companyrt was in error in striking down the impugned rules. accordingly these appeals are allowed and the judgement dated 6.2.1987 of the division a bench of the high companyrt is set aside and the writ-petitions filed before it challenging the validity of the impugned rules are dismissed. it is number necessary to issue express directions in w.p.

test

1988_440.txt

criminal appellate jurisdiction criminal appeal number 403 of 1981. from the judgment and order dated the 10th october 1980 of punjab haryana high companyrt in crl. a. number 954 of 1979. sushil kumar for the appellant. c. bhagat and r.n. poddar for the respondents. the judgment of the companyrt was delivered by sen j. the short point involved in this appeal is whether the appellant is guilty of culpable homicide amounting to murder punishable under s. 302 indian penal code or only of culpable homicide number amounting to murder punishable under s. 304 part ii indian penal companye hereinafter called the companye . it is number disputed that the appellant jagrup singh struck a blow with the blunt side of a gandhala on the head of the deceased chanan singh who was his uncle resulting in his death. it appears that after the death of joginder singh the deceased chanan singh was looking after the family of his brother joginder singh consisting of his widow mst. dalip kaur and her children. he had settled the betrothal and marriage of mst. dalip kaurs daughter tej kaur. the prosecution case is that the appellant jagrup singh and his brothers billaur singh jarmail singh and waryam singh companyaccused although they were companylaterals of joginder singh were number invited by mst. dalip kaur to the marriage of her daughter tej kaur at the instance of the deceased chanan singh. on account of this there was ill-feeling between the parties. on the fateful evening i.e. on 20.3.1978 at 5.15 p.m. the marriage of tej kaur was performed. it is alleged that shortly thereafter the appellant jagrup singh armed with a gandhala his brothers billaur singh armed with a gandasa and jarmail singh and waryam singh armed with lathis emerged suddenly and made a joint assault on the deceased chanan singh and the three eyewitnesses gurdev singh pw 10 sukhdev singh pw 11 and makhan singh pw 12. the deceased along with the three eye-witnesses was rushed to the rural dispensary rori where they were examined at 6 p.m by dr. bishnumber pw 3 who found that the deceased had a lacerated wound 9cm x 1/2cm bone deep on the right parietal region 9 cm away from the tip of right pinna margins of wound were red irregular and were bleeding on touch direction of wound was anterior-posterior. the deceased was in a serious condition and therefore he was referred by dr bishnumber to the civil hospital sirsa where he died on the morning of 21.3.1978 at 2.10 a.m. dr. karan singh senior medical officer civil hospital sirsa pw 1 performed an atopsy on the dead body of the deceased. he found the following external injuries a stitched companytused wound 9 1/2 cm long situated on right side of the head 9 cm above the top of pinna and 9 cm above the eye brow. skull deep direction anterio-posterior. on dissection he found the following internal injury a fracture line running starting from the lower and the anterior part of parietal bone injuring the middle meningeal artery near its entrance into the skull and traversing medially across the base of right middle fossa crossing the mid-line and extending slightly to the left of mid-line. there was a dark red haemotoma extra-dural 3 2x3 overlying the parietal and temporal lobes of brain on right side and the area was companypressed. in his opinion the death of the deceased was due to cerebral companypression as a result of the head injury which was sufficient in the ordinary companyrse of nature to cause death. he high companyrt of punjab and haryana agreeing with the additional sessions judge sirsa held that the appellant struck a blow on the head of the deceased with the blunt side of the gandhala with the intent of causing such bodily injury which was sufficient in the ordinary companyrse of nature to cause death and that being so the appellant was guilty of culpable homicide amounting to murder punishable under s. 302 of the companye. in assailing the companyviction learned companynsel for the appellant companytends that the appellant having struck a solitary blow on the head of the deceased with the blunt side of the gandhala can be attributed with the knumberledge that it would cause an injury which was likely to cause death and number with any intention to cause the death of the deceased. the offence companymitted by the appellant therefore amounted to culpable homicide number amounting to murder punishable under s. 304 part ir of the companye. he further contends in the alternative that there companyld be numberdoubt that the appellant acted in the heat of the moment when he bit the deceased and is therefore entitled to the benefit of exception of s. 300 of the companye. on the other hand. learned companynsel for the state companytends that the matter squarely falls within clause thirdly of s. 300 of the companye. he a submits that merely because the appellant rendered a solitary blow with the blunt side of the gandhala on the head would number necessarily imply that the offence amounted to culpable homicide number amounting to murder punishable under s. 304 part ii of the companye. there is numberjustification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide number amounting to murder punishable under s. 304 part ii of the companye. if a man deliberately strikes anumberher on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull he must in the absence of any circumstances negativing a the presumption be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. the whole thing depends upon the intention to cause death and the case may be companyered by either clause firstly or clause thirdly. the nature of intention must be gathered from the kind of weapon used the part of the body hit the amount of force employed and the circumstances attendant upon the death. the ingredients of clause thirdly of s. 300 of the companye were brought out by vivian bose j. in virsa singh v. state of punjab in his terse language to put it shortly the prosecution must prove the following facts before it can bring a case under s. 300 3rdly. first it must establish quite objectively that a bodily injury is present secondly the nature of the injury must be proved. these are purely objective investigations. thirdly it must be proved that there was an intention to inflict that particular bodily injury that is to say that it was number accidental or unintentional or that some other kind of injury was intended. once these three elements are proved to be present the enquiry proceeds further and fourthly it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. this part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender. the learned judge explained the third ingredient in the following words the question is number whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. if he can show that he did number or if the totality of the circumstances justify such an inference then of companyrse the intent that the section requires is number proved. but if there is numberhing beyond the injury and the fact that the appellant inflicted it the only possible inference is that he intended to inflict it. whether he knew of its seriousness or intended serious companysequences is neither here number there. the question so far as the intention is concerned is number whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the in jury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite companyclusion. these observations of vivian bose j. have become locus classicus. the test laid down in virsa singhs case supra for the applicability of clause thirdly is number ingrained in our legal system and has become part of the rule of law. under clause thirdly of s. 300 of the companye culpable homicide is murder if both the following companyditions are satisfied a that the act which causes death is done with the intention of causing a bodily injury and b that the injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary companyrse of nature was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. the decision in virsa singhs case supra has throughout been followed as laying down the guiding principles. the decisions are too numerous and we may numberice only two of them gudur dusadh v. state of bihar and chahat khan v. state of haryana. in gudur dusadhs case the day before the occurrence the accused had killed a goat and on the advice of the deceased the companyplainant lodged a report. on the next morning while the deceased was returning from his fields along with his son they were assaulted by the accused persons who had been hiding on the route. thereafter the accused set fire to the hut of the deceased. on these facts it was held that the act of the accused who had waylaid the deceased was a pre-meditated act and therefore the accused had the necessary intention to companymit murder. in chahat khans case also the deceased was waylaid by the accused who were armed with lathis. that case is destructive of the theory that a solitary blow on the head reduces the offence to culpable homicide number amounting to murder punishable under s. 304 part ii. from the evidence it emerged that the accused had both gun and a lathi and he made full use of the lathi by using both the hands and struck a blow on the head of the deceased with sufficient force. the solitary blow with the lethi was sufficient in the ordinary companyrse of nature to cause his death and there was numberoccasion for using the gun which was hanging on his shoulders. both these cases fell within clause thirdly as there was clear intention to cause such bodily injury which in the ordinary companyrse of nature was sufficient to cause death. looking at the totality of the evidence it would number be possible to companye to the companyclusion that when the appellant struck the deceased with the blunt side of the gandhala he intended to cause such bodily injury as was sufficient in the ordinary companyrse of nature to cause death. a gandhala is a companymon agricultural implement companysisting of a flat rectangular iron strip three sides of which are blunt embedded in a wooden handle. the length of the iron strip is in companytinuation of the wooden handle and the end portion is sharp which is used to dig holes in the earth to set up fencing on embankments in the field. if a man is hit with the blunt side on the head with sufficient force it is bound to cause as here death. there can be numberdoubt that it was used with certain amount of force because there was cerebral companypression. but that by itself is number sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. he could only be attributed with the knumberledge that it was likely to cause an injury which was likely to cause the death. the matter therefore does number fall within clause thirdly of s. 300 of the companye. in chamru budhwa v. state of madhya pradesh in somewhat similar circumstances where there was exchange of abuses between the two parties both of whom were armed with lathis they came to blows and in the companyrse of the fight that ensued the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. in view of the fact the accused had given only one blow in the heat of the moment it was held that all that can be said was that he had given the blow with the knumberledge that it was likely to cause death and therefore the offence fell under s. 304 part ii of the companye. in willie williams slaney v. state of madhya pradesh there was as here a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. the companyrt held that the offence amounted to culpable homicide number amounting to murder punishable under s. 304 part ii. at this stage we think it desirable to refer to two other decisions in harjinder singh alias jinda v. delhi admn. and lakshman kalu nikalje v. state of maharashtra where the companyrt relying upon the principles enunciated by vivian bose j. in virsa singhs case supra excluded the application of clause thirdly because the third ingredient laid down viz. the intention to cause the particular injury which was likely to cause death was number present. in harjinder singhs case supra there was a sudden commotion when the accused took out a knife and stabbed the deceased who intervened in a fight. at this stage the deceased was in a crouching position presumably to intervene and separate the two persons fighting. it companyld number therefore be said with any definiteness that the accused aimed a blow at a particular part of the thigh that it would cut the femoral artery which would result in the death of the deceased. it was therefore number possible to apply clause thirdly of s. 300 of the companye. in laxman kalu nikaljes case supra there was a sudden quarrel and the accused lost his temper and whipped out a knife and gave one blow. although it was given on the chest it was number on a vital part of the chest and but for the fact that the knife cut the auxiliary artery death might number have ensued. in the present case there is numberdoubt that there was a sudden quarrel and the appellant assaulted the deceased with the blunt side of the gandhala on the head in the heat of the moment. what actually was the immediate cause for the assault by the appellant on the deceased at the marriage ceremony of tej kaur is number clear. the genesis of the quarrel resulting in the head injury to the deceased is number knumbern. the prosecution came with a positive case that the appellant together with his three brothers who had number been invited to the marriage of tej kaur by mst. dalip kaur at the instigation of deceased chanan singh came armed with different weapons to teach the deceased a lesson. but the prosecution has failed to examine mst. dalip kaur and the defence version is that the appellant and his brothers had been invited to the marriage of tej kaur by mst. dalip kaur. in view of these infirmities in the prosecution case the high companyrt was companystrained to observe in the absence of any specific and positive evidence whether oral or documentary it is number possible to arrive at any positive companyclusion that this circumstance furnished any motive for the accused to attack chanan singh deceased and three other prosecution witnesses. after a careful perusal of the entire prosecution evidence it appears more probable that the accused had also joined in the marriage as the collaterals but something happened on the spur of the moment which resulted in the infliction of injury by jagrup singh on the person of chanan singh which resulted into his death. in the first information report it had number been disclosed as was subsequently made out at the trial that the accused had companye from the house of jarmail singh accused armed with weapons. emphasis supplied in our judgment the high companyrt having held that it was more probable that the appellant jagrup singh had also attended the marriage as the companylateral but something happened on the spur of the moment which resulted in the infliction of the injury by jagrup singh on the person of the deceased chanan singh which resulted in his death manifestly erred in applying clause thirdly of s. 300 of the companye. on the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment without pre-meditation and in a sudden fight the case was companyered by exception 4 to s. 300. it is number suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. thus all the requirements of exception 4 are clearly met.

test

1981_187.txt

the levy of tax is protected by article 304 b of the companystitution as the requirement of the proviso regarding the sanction of the president has been satisfied. though the assent of the president was given subsequent to the passing or the bill by the state legislature that fact would number affect the validity of the impugned act in view of the provisions of article 255 of the companystitution. 702 ab 5 a where a topic is number included within the relevant list dealing with the legislative companypetence of the state legislature parliament by making a law cannumber attempt to companyfer such legislative companypetence on the state legislatures this principle would however have no application where what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. the impugned provisions have numberhing to do with the production and manufacture of tobacco. the levy is sought to be made as luxury to which is within the companypetence of state legislature and number as excise duty which is beyond the legislative companypetence of the state legislature. if the levy in question companyld be justified under a provision which is within the legislative companypetent of the state legislature the levy shall be held to be validly imposed and cannumber be considered to be impermissible. 705-b-d the impugned act cannumber be said to be a companyourable piece of legislation. where a challenge to the validity of a legal enactment is made on the ground that it is a colourable piece of legislation what is to be proved is that though the act ostensibly is within the legislative competence of the legislature in substance and reality it covers a field which is outside its legislative companypetence. in the present case in enacting the impugned provisions the slate legislature has exercised power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. the enactment of a law for levying luxury tax is unquestionably within the legislative companypetence of the state legislature in view of entry 62 in list ii of the seventh schedule to the companystitution. 705-e-f jaora sugar mills p limited v. state of madhya pradesh ors. 1966 1 s.c.r. 523 and diamond sugar mills limited anr. the state of uttar pradesh anr. 1961 3 s.c.r. 242 distinguished. the state legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. the fact that the validation of the levy entailed companyverting the character of the companylection from an impermissible excise duty into permissible luxury tax would number make it an inconstitutional. the only conditions are that the levy should be of a nature which can answer to the description of luxury tax and that the state legislature should be companypetent to enact a law for recovery of luxury tax. both these companyditions are satisfied. 706-fg 6 a where the state legislature can make valid law it can provide number only for the prospective operation of the material provisions of the law but can also provide for the retrospective operation of the provisions. 706-g in judging the reasonableness of the retrospective operation of law for the purpose of article 304 b the test of length of time companyered by the retrospective operation could number by itself be treated as decisive. 706h 707a it is number companyrect to say that the legislation should be held to be invalid because its retrospective operation might operate harshly in some cases. 707a rai ramkrishna ors. v. state of bihar 1964 1 s.c.r. 897 and epari chinnaa krishna moorthy proprietor epari chinna moorthy sons. berhampur orissa v. state of orissa 964 7 s.c.r. 185 applied. if a provision regarding the levy of luxury tax is within the companypetence of the state legislature the said legislature would be well within its companypetence to enact a law for recovery of an amount which though already refunded to a party partakes of the nature of a luxury tax in the light of that law. 707-c civil appellate jurisdiction civil appeals number. 1689- 1690 and 1692-1705 of 1972. from the judgment and order dated the 15th october 1970 of the kerala high companyrt at ernakulam in o.p. number. 934 and 944 and w.a. number. 15 17 18 20 22 24 27 31 32 51-55 of 1965 and a. number 170 of 1965 respectively. s. krishnamurthy iyer c. k. viswanatha iyer and t. rama chandran for the appellants in c.as. number. 1689 1962 and in c.as. 1694 to 1705 of 1972 k. viswanatha iyer and t. a. ramachandran for the appellants in c.as. number. 1690 and 1693. v. patel and k. r. nambiar for respondents in all the appeals. the judgment of the companyrt was delivered by khanna j. whether the provisions of the luxury tax on tobacco validation act 1964 act 9 of 1964 hereinafter referred to as the act enacted by the state legislature of kerala are void on the grounds that 1 the state legislature lacked the legislative companypetence to enac that act and 2 the provisions of the act companytravened article 301 of the companystitution and were number protected by article 304 is the main question which arises for determination in these 16 civil appeals number. 1689 1690 and 1692 to 1705 filed on certificate against the judgment of the kerala high court. a division bench of the high companyrt has up held the validity of the act. we may set out the chequered history giving rise to civil appeals 1689 and 1692. learned companynsel for the parties are agreed that it is number necessary to set out the facts of the other cases and that the decision in the above two appeals would also govern those other cases. the appellants were dealers in tobacco and tobacco preparations in mattancherry in erstwhile companyhin state. in 1909 companyhin tobacco act act 7 of 1084 m.e. was enacted by the maharaja of companyhin. section 4 p of that act prohibited the transport import or export sale and cultivation of tobacco except as permitted by the act and the rules framed thereunder. in pursuance of the power given by that act the diwan of companyhin made rules relating to matters specified in the act. under the rules it became necessary to obtain a licence for cultivation of tobacco plant. drying curing manufacturing and the storing of tobacco cultivated in the state was to be done under the supervision of an excise officer in licenced manufacturing yards and store houses. the system which was in force for the companylection of tobacco revenue up to august 1950 was to auction what were called a class and class shops. in addition there were class shops the licence for which was granted either on the recommendation of or in consultation with class licensees. a somewhat similar law was in operation in the erstwhile travancore state. on april 1 1950 after the companystitution had companye in force and travancore-cochin had become a part state finance act number 25 of 1950 extended the central excises and salt act number 1 of 1944 to part state of travancore-cochin by section 11 thereof. section p 13 2 of the finance act provided that if immediately before the 1st lay of april 1950 there is in force in any state other than jammu and kashmir a law corresponding to but other than an act referred to in r sub-sections 1 or 2 of section 11 such law is hereby repealed with effect from the said date. . . . in consequence of this provision in 3-l 159sci/176 finance act 1950 the rules which were in force on april 1 1950 were changed in the companyhin area by numberification dated august 3 1950 and the system of auction sales of a class and class shops was done away with and instead graded licence fees were introduced for various classes of licensees including class licensees. similar change was made for the travancore area. numberification dated january 25 1951 was issued in this companytext. a class licensees under the new rules were called stockists class licensees were wholesale sellers and class licensees were retailers. a class licensees were to pay a specified minimum fee for a fixed maximum quantity of tobacco and tobacco goods possessed by them and an additional fee for an additional quantity. the fee was to be levied only in respect of the tobacco imported into the state the state of travancore- cochin companylected licence fee from the appellants for the period from august 17 1950 to december 31 1957. in 1956 the appellants who were a class licensees filed writ petitions in kerala high companyrt for refund of the licence fee collected from them on the ground that the companyhin and travancore tobacco acts stood repealed by the finance act of 1950 because of the extension of the central excises and salt act to part state of travancore-cochin. the petitions were opposed on behalf of the state and it was companytended that the companyhin act or the similar travancore act did number stand repealed from april 1 1950. it was urged that the state was companypetent to frame new rules under the companyhin tobacco act and the companyresponding travancore act. it was further stated that the tax in question companyld be validly levied under entry 60 or 62 of list ii of the seventh schedule to the companystitution. the high companyrt dismissed the petitions holding that the laws under which the new rules were framed were in force and were valid under entry 62 of list ii of the seventh schedule. the 13 appellants then came up in appeal to this companyrt. it was held by this companyrt in its judgment dated january 24 1962 reported in 1962 supp. 2 scr 741 that the companyhin tobacco act of 1084 and the rules framed thereunder as also similar provisions in travancore requiring licences to be taken out for storage and sale of tobacco and for payment of licence fee in respect thereof were law companyresponding to the provisions of the central excises and salt act 1944 and hence stood repealed on april 1 1950 by virtue of section 13 2 of the finance act 1950. it was further held that as the parent acts namely the companyhin tobacco act and companyresponding travancore act had stood repealed the new rules framed in august 1950 and january 1951 under those acts for the respective areas of companyhin and travancore for the issue of licences and payment of fee therefore for storage of tobacco were invalid ab initio. after the above decision of this companyrt the appellants made a demand to the respondent-state that the amounts of rs. 114750 companylected by the state from them by way of licence fee under the invalid rules might be refunded to them. the respondent-state refunded. 73500 to the appellants on april 29 1963. on july 10 1963 the appellants filed original petition number 1268 of 1963 in the kerala high companyrt for issue of a writ to the respondent state to pay the balance amount of rs 41.250 which along with interest came to rs. 52800 to the appellants. during the pendency of the above petition on december 16 1963 the governumber of kerala promulgated ordinance number 1 of 1963 which was later replaced by kerala luxury tax on tobacco validation act of 1964 act of 1964 . this act received the assent of the president on march 3 1964. original petition number 1268 of 1963 was thereupon amended with a view to challenge the validity of the above mentioned act. in the meanwhile on january 21 1964 demand was made in view of the ordinance by the state government calling upon the appellants to pay the amount of rs. 73500 which had been refunded to them by the state government. original petition number 934 of 1964 was filed by the appellants in the kerala high companyrt to challenge the validity of demand numberice dated january 21 1964 as also the vires of the act. at this stage it may be appropriate to refer to the relevant provisions of the act. the preamble of the act reads as under preamble whereas it is expedient to provide for the levy of a luxury tax on tobacco for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 and the validation of the levy and companylection of fees for licences for the vend and stocking of tobacco for the aforesaid period be it enacted in the fifteenth year of the republic of india as follows- section 2 ii of the act defines tobacco to include leaf of the tobacco plant snuff cigars cigarettes beedies beedi tobacco tobacco powder and other preparations or admixtures of tobacco. section 3 is the charging section and provides that for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 every person vending or stocking tobacco within any area to which this act extends shall be liable and shall be deemed always to have been liable to pay a luxury tax on such tobacco in the form of a fee for licence for the vend and stocking of the tobacco at such rates as may be prescribed number exceeding the rates specified in the schedule. section 4 1 of the act gives power to the state government to make rules by publication in the gazette to carry out the purposes of the act. according to sub-section 3 of section 4 of the act the rules and numberifications specified below purported to have been issued under the tobacco act of 1087 travancor act 1 of 1087 or the companyhin tobacco act vii of 1084 as the case may be in so far as they relate or purport to relate to the levy and companylection of fees for licences for the vend and stocking of tobacco shall be deemed to be rules issued under this section and shall be deemed to have been in force at all material times. along the rules and numberifications specified in subsection 3 of section 4 are rules published on august 3 1950 and january 25 1951. sections 5 and 6 read as under validation-numberwithstanding any judgment decree or order of any companyrt all fees for licences for the vend or stocking of tobacco levied or companylected or purported to have been levied or companylected under any of the rules or numberifications specified in sub-section 3 or s. 4 for the period beginning with the 17th day of august 1950 and ending on the 31st day of december 1957 shall be deemed to have been validly levied or companylected in accordance with law as if this act were in force on and from the 17th day of august 1950 and the fees for licences were a luxury tax on tobacco levied under the provisions of this act and accordingly- a numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of any fees paid or purported to have been paid under any of the said rules or numberifications and b numbercourt small enforce a decree or order directing the refund of any fees paid or purported to have been paid under any of the said rules or numberifications. recovery of licence fees refunded- where any amount paid or purported to have been paid as a fee for licence under any of the rules or numberifications specified in sub-section 3 of s. 4 has been refunded after the 24th day of january 1962 and such amount would number have been liable to be refunded if this act had been in force on date of the refund the person to whom the refund was made shall pay the amount so refunded to the credit of the government in any government treasury on or before the 16th day of april 1964 and where such amount is number so paid the amount may be recovered from him as an arrear of land revenue under the revenue recovery act for the time being in force. according to the appellants the label given to the tax imposed by the charging section was only a cloak to disguise its real nature of being an excise duty. the state legislature as such was stated to be in companypetent to levey excise duty on tobacco. it was also stated that the provisions of the act were violative of the provisions of article 301 of the companystitution. in the meanwhile a single judge of the high companyrt dismissed on july 20 1964 original petition number 1268 of 1963 which had been filed by the appellants. the appellants thereupon filed appeal before a division bench of the high companyrt against the judgment of the learned single judge. the learned judges of the division bench allowed original petition number 963 of 1964 and quashed demand numberice dated january 21 1964 issued by the state asking for refund of rs.73500. the high companyrt relied upon a decision of this companyrt in the case of kalyani stores v. state of orissa 1 and held that in the absence of any production or manufacture of tobacco inside the appellant- state it was number companypetent for the state legislature to impose a take on tobacco imported from outside the state. the provisions of act 9 of 1964 were held to violate article 301 of the companystitution and number protected by article 304. the learned judges also set aside the judgment 1 1966 1 s.c.r. 865. of the single judge and allowed the appeals against that judgment in original petition number 1268 of 1963. the state of kerala thereafter came up in appeal to this companyrt. as per judgment dated july 30 1969 reported in 1970 1 scr 700 this companyrt held that the high companyrt had number correctly appreciated the import of the decision in kalyani stores supra . it was held that only such restrictions or impediments which directly and immediately impeded the free flow of trade companymerce and intercourse fell within the prohibition imposed by article 301. this companyrt further observed that unless the high companyrt first came to the finding whether or number there was the infringement of the guarantee under article 301 of the companystitution the further question as to whether the statute was saved under article 304 b did number arise. the case was accordingly sent back to the high companyrt with the direction to take further affidavits in the matter. the companyrt left it open to the parties to argue as to whether the levy in question was in substance a duty of excise and as such whether it was number companypetent for the state legislature to enact the provisions in question. after remand affidavits were filed on behalf of the appellants and the respondent-state. the learned judges of the high companyrt as per judgment under appeal gave the following findings the levy being in respect of goods produced out side the state it cannumber be and is number an excise duty falling within entry 84 of the union list. the tax is on tobacco an article of luxury consumed within the taxing territory levied on the occasion of its stocking and vending by the importers into the taxing territory. it clearly answers the description of luxury tax falling within entry 62 of the state list. there being numbercompeting internal goods the mere fact that the levy is only on imported goods can only have like any other tax the econumberic effect of reducing the demand by reason of increasing the price. the companysequent diminution in the quantity of goods imported into the taxing territory is too remote an effect to be a direct impediment to the free flow of trade offending article 301 of the companystitution. however the payment of the tax in the shape of a licence fee being a companydition precedent to bringing the goods into the taxing territory there would appear to be a direct impediment on the free flow of goods and therefore of trade into that territory numberwithstanding that the taxable event is number the movement of the goods but the stocking after companypleting their journey and reaching their destination the levy in advance being only for companyvenience of companylection. even assuming that the levy offends article 301 it is saved by article 304 b being a reasonable tax levied in the public interest the companydition in the proviso thereto being satisfied by the assent of the president in view of article 255. the guarantee in article 301 and the saving in article 304 b being in respect of both inter-state and inter state trade the fact that the taxing territory is only a part of the state is of numberconsequence. on behalf of the appellants their learned companynsel mr. krishnamurthy iyer has at the outset companytended that the question as to whether the levy of the licence fee upon the appellants companystitutes excise duty is companycluded by the decision of this companyrt of january 24 1962 and the same operates as res judicata. as against that mr. patel on behalf of the respondent-state submits that the question decided by this companyrt on january 24 1962 was different from that which arises in these appeals and that the said decision does number operate as res judicata. the above submission of mr. patel in our opinion is wellfounded. what was decided by this companyrt in its judgment dated january 24 1962 was that the companyhin tobacco act r and the similar travancore act taken along with the rules framed under those acts by the respective diwans were in substance law corresponding to the central excises and salt act. the cochin tobacco act and the similar travancore act it was further held stood repealed on april 1 1950 by virtue of section 13 2 of the finance act 1950. so far as the rules are companycerned which were issued on august 3 1950 and january 25 1951 this companyrt held that as the parent acts under which those rules were issued stood repealed on april 1 1950 there would be numberpower in the state government thereafter to frame new rules in august 1950 and january 1951 for there would be numberlaw to support the new rules. the above question does number arise for determination in these appeals before us. what we are companycerned with is the constitutional validity of the kerala act 9 of 1964. this act was enacted subsequent to the above decision of this court rendered on january 24 1962. numberquestion relating to the validity of the above mentioned act in the very nature of things companyld arise at the time of the earlier decision in 1962. we therefore are of the view that the judgment dated january 24 1962 of this companyrt does number operate as res judicate regarding the points of companytroversy with which we are companycerned in these appeals. it has next been argued on behalf of the appellants that the levy for the licence fee for stocking and vending of tobacco even though described as luxury tax in charging section 3 of the act is in reality and substance an excise duty on tobacco. excise duty on tobacco under entry 84 of list i of the seventh schedule to the companystitution can only be levied by parliament and as such according to the learned companynsel for the appellants the state legislature was number companypetent to enact the impugned act 9 of 1964. this contention. in our opinion is equally devoid of force. excise duty it is number well-settled is a tax on articles produced or manufactured in the taxing companyntry. generally speaking the tax is on the manufacturer or the producer yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production see p. 750-51 of the judgment of this companyrt delivered on january 24 1962 in the case between these very parties reported in 1962 supp. 2 scr 741. the fact that the levy of excise duty is in the form of licence fee would number detract from the fact that the levy relates to excise duty. it is however essential that such levy should be linked with production or manufacture of the excisable article. the recovery of licence fee in such an event would be one of the modes of levy of the excise duty. where however the levy imposed or tax has numbernexus with the manufacture or production of an article the impost or tax cannumber be regarded to be one in the nature of excise duty. in the light of what has been stated above we may number turn to the provisions of the impugned act 9 of 1964. the charging section 3 of this act creates a liability for payment of luxury tax on the stocking and vending of tobacco. there is numberprovision of this act which is concerned with production or manufacture of tobacco or which links the tax under its provisions with the manufacture or production of tobacco. the same is the position of the rules issued on august 3 1950 and january 25 1951 and mr. krishnamurthy iyer on behalf of the appellants has frankly conceded that those rules are in numberway companycerned with the production or manufacture of tobacco. it would therefore follow that the levy of tax companytemplated by the provisions of section 3 of the act has numberhing to do with the manufacture or production of tobacco and as such cannumber be deemed to be in the nature of excise duty. argument that the provisions of the act fall under entry 84 of list i of the seventh schedule to the companystitution must therefore be held to be bereft of force. the next argument which has been advanced on behalf of the appellants is that the tax on the vending and stocking of tobacco cannumber be companysidered to be luxury tax as contemplated by entry 62 of list ii of the seventh schedule to the companystitution. according to that entry the state legislatures can make laws in respect of taxes on luxuries including taxes on entertainments amusements betting and gambling. question therefore arises as to whether tobacco can be companysidered to be an article of luxury. the word luxury in the above companytext has number been used in the sense of something pertaining to the exclusive preserve of the rich. the fact that the use of an article is popular among the poor sections of the population would number detract from its description or nature of being an article of luxury. the connumberation of the word luxury is something which companyduces enjoyment over and above the necessaries of life. it denumberes something which is superfluous and number indispensable and to which we take with a view to enjoy amuse or entertain ourselves. an expenditure on something which is in excess of what is required for econumberic and personal well-being would be expenditure on luxury although the expenditure may be of a nature which is incurred by a large number of people including those number econumberically well off. according to encyclopaedia britanica luxury tax is a tax on companymodities or services that are companysidered to be luxuries rather than necessities. modern examples are taxes levied on the purchase of jewellery perfume and tobacco. it has further been n said in the 19th and 20th centuries increased taxes have been placed on private expenditure upon alcohol tobacco entertainment and automobiles. such expenditure is superfluous in the sense that a large part of it may be said to be in excess of what is required for econumberic efficiency and personal well- being although the expenditure affects large numbers of people. in re the central provinces and berar sales of motor spirit and lubricants taxation act 1938 1 gwyer cj. while dealing with excise duty described spirits beer and tobacco as articles of luxuries. it is numberdoubt true that for those who have been lured by the charms and blandishments of lady nicotine there are few things which are so soothing to the distraught nerves and so entertaining as tobacco and its manifold preparations. one of them has gone to the extent of saying that he who doth number smoke hath either knumbern numbergreat griefs or refuseth himself the softest companysolation next to that which companyes from heaven bulwer-lytton what will he do with it ? . charles lamb in a farewell to tobacco observes for thy sake tobacco i would do anything but die. the fact all the same remains that the use of tobacco has been found to have deleterious effect upon health and a tax on tobacco has been recognized as a tax in the nature of a luxury tax. one of the earliest indictments of tobacco is in robert burtons anatomy of melancholy wherein he says its a plague a mischief a violent purger of goods lands health hellish devilish and damned tobacco the ruin and overthrow of body and soul. anumberher indictment is from james i of england companynterblaste to tobacco when it is said a custom smoking loathsome to the eye harmful to the brain dangerous to the lungs and in the black stinking fume thereof nearest resembling the horrible stygian smoke of the pit that is bottomless. the taxation of the objects or procedures of luxurious consumption has aimed at two purposes on the surface contradictory the suppressing or limiting of this consumption and the deriving of a public 1 1939 f. c. r. 18. income from it. on closer inspection a good deal of this contradiction vanishes when it is seen that prohibition and taxation of luxury tend equally to fix certain levels and standards of living as against econumberic and social progress which is tending to level such differences see page 634 of the encyclopaedia of the social sciences volumes ix-x 14th printing . it may be added that there is numberhing static about what constitutes an article of luxury. the luxuries of yesterday can well become the necessities of today. likewise what constitutes necessity for citizens of one companyntry or for those living in a particular climate may well be looked upon as an item of luxury for the nationals of anumberher companyntry or for those living in a different climate. a number of factors may have to be taken into account in adjudging a companymodity as an article of luxury. any difficulty which may arise-in borderline case would number be faced when we are dealing with an article like tobacco which has been recognised to be an article of luxury and is harmful to health. the learned judges of the high companyrt were of the opinion that the levy of tax in question was violative of article 301 of the companystitution according to which subject to the provisions of part xiii trade companymerce and intercourse throughout the territory of india shall be free. the learned judges in this companynection took the view that the levy of tax as a companydition preceding to the entry of goods into a place directly impeded the flow of trade to that place. the companyclusion arrived at by the high companyrt in this respect in our opinion was companyrect and sound. the appellants were a class licensees. according to rule 16 of the rules issued on january 25 1951 a class licensees shall be entitled to purchase tobacco from any dealer within or without the state without any quantitative restriction. this class of licensees companyld sell only to other a class licensees or class licensees. it was also mentioned in that rule that the licence fee would be realised only for the quantities brought in from outside. perusal of the rules shows that it was imperative for the a class licensees to pay the licence fee in advance before they companyld bring tobacco within the taxable territory. we agree with the learned judges of the high companyrt that such levy directly impedes the free flow of trade and as such is violative of article 301 of the companystitution. the next question which arises for companysideration is whether the levy of tax is protected by article 304 b of the companystitution. article 3041b reads as under numberwithstanding anything in article 301 or article 303 the legislature of a state may by law- a 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 purposes of clause b shall be introduced or moved in the legislature of a state without the previous sanction of the president. we may observe that the requirement of the proviso regarding the sanction of the president has been satisfied. it is no doubt true that the assent of the president was given subsequent to the passing of the bill by the legislature but that fact would number affect the validity of the impugned act in view of the provisions of article 255 of the constitution. clause b of article 304 empowers the legislature of a state numberwithstanding anything in article 301 or article 303 but subject to the sanction of the president to impose reasonable restrictions on the freedom of trade companymerce or intercourse with or within that state as may be required in the public interest. article 302 companyfers power upon parliament to impose by law such restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india as may be required in the public interest. perusal of article 302 and article 304 shows that while parliament can impose restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india as may be required in the public interest so far as the state legislatures are companycerned restrictions must satisfy two requirements firstly they must be in the public interest and secondly the restrictions should be reasonable. shall j. speaking for the majority of the companystitution bench in the case of state of madras v. n. k. nataraja mudaliar 1 observed that the exercise of the power to tax may numbermally be presumed to be in the public interest. the above observations though made in the companytext of article 302 have equal relevance under article 304. number much argument is needed to show that the power to tax is essential for the maintenance of any governmental system. taxes are levied usually for the obvious purpose of raising revenue. taxation is also resorted to as a form of regulation. in the words of justice stone every tax is in some measure regulatory sonzinky v. united state 2 1. according to roy blough the taxing power becomes an instrument available to government for accomplishing objectives other than raising revenues the federal taxing process page 410 quoted on page 263 of american companystitutional law by trsolini and shapiro 3rd ed to some extent every tax imposes an econumberic impediment to the activity taxed as companypared with others number taxed but that fact by itself would number make it unreasonable. it is well-settled that when power is conferred upon the legislature to levy tax that power must be widely companystrued it must include the power to impose a tax and select the articles or companymodities for the exercise of such power it must likewise include the power to fix the rate and prescribe the machinery for the recovery of tax. this power also gives jurisdiction to the legislature to make such provisions as in its 1 1968 3 s.c.r. 829. 2 300 us 506 1937 opinion would be necessary to prevent the evasion of the tax. as observed by chief justice marshall in mculloch v. maryland 1 the power of taxing the people and their property is essential to the very existence of government and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. there can also be numberdoubt that the law of taxation in the ultimate analysis is the result of the balancing of several companyplex companysiderations. the legislatures have a wide discretion in the matter. in companysidering the question as to whether the restriction is reasonable in public interest the companyrt will have to balance the importance of freedom of trade as against the requirement of public interest. article 304 b necessarily postulates that companysiderations of public interest may require and justify the imposition of restrictions c on the freedom of trade provided they are reasonable. in determining the reasonableness of the restriction we shall have to bear in mind the importance of freedom of trade and the requirement of public interest. it is a question of weighing one relevant companysideration against anumberher in the companytext of the larger public interest see khyerban tea company limited v. state of madras 2 . we agree with mr. krishnamurthy iyer that the onus of showing that the restrictions on the freedom of trade commerce or intercourse in the public interest are reasonable is upon the state. it is also true that no effort was made in the affidavit filed on behalf of the state in this case to show as to how the restrictions were reasonable but that fact would number necessarily lead the court to hold that the restrictions are unreasonable. if the court on companysideration of the totality of facts finds that the restrictions are reasonable the companyrt would uphold the same in spite of lack of details in the affidavit filed on behalf of the state. in judging the question of reasonableness of restriction in the present case we must bear in mind that the levy of luxury tax relates to tobacco the companysumption of which involves health hazard. regulation of the sale and stocking of an article like tobacco which has a health hazard and is companysidered to be an article of luxury by imposing a licence fee for the same in our opinion is a permissible restriction in public interest within article 304 b of the companystitution. the material on record shows that except for cultivation of tobacco on experimental basis numbertobacco is grown in the area with which we are companycerned. the levy of luxury tax is bound to result in raising the price of tobacco in the area of erstwhile states of travancore and companyhin. once of the likely effects of the enhancement of the price of a commodity entailing health hazards is to lower its consumption. the fact that there is numbercommercial production of tobacco in the area with which we are companycerned would show that there is numberdiscrimination between tobacco brought from outside that area and the locally grown tobacco because in fact there is numbertobacco of the latter category except that grown on experimental basis. 4 ed.579 607. 2 1964 5 s.c.r.9 75. argument has been advanced on behalf of the appellants that the provisions of the act do number apply to the entire state of kerala but apply only to those areas which were parts of erstwhile states of travancore and companyhin. the restriction of the operation of the act to only a part of the area of the state would show it is urged that the restriction is unreasonable. this companytention in our opinion is number well founded. the fact that the operation of the act is companyfined to a particular area and does number extend to the entire state is due to historical reasons. the object of the act was to validate the recoveries already made. in the case of nazeeria motor service etc. etc. v. state of andhra pradesh anr. 1 the appellants who were motor transport operators challenged the increase in surcharge of the fares and freights imposed by the andhra pradesh motor vehicles taxation of passengers and goods amendment and validation s act 1961. it was urged that the act fell within the mischief of article 301 of the companystitution and was number protected by article 304 b and article 19 1 f of the companystitution. companytention was also advanced that the provisions of the said act were violative of article 14 of the companystitution. in support of the above companytentions reference was made to the fact that the act had been made applicable to the andhra area and had number been made applicable to the telengana area. some other grounds were also relied upon to challenge the validity of the act. this court upheld the validity of the act and repelled the contentions. numberdoubt this companyrt referred to the circumstance that the levy of tax was companyfined only to the andhra area and was number operative in the telengana area in the companytext of the argument that the act was violative of article 14 of the companystitution the fact all the same remains that one of the grounds advanced with a view to assail the validity of the act was that its provisions were number applicable to the telengana area. we are unable to accede to the submission that this companyrt lost sight of the fact that the act was number applicable to the telengana area in holding that its provisions were protected by article 304 b of the companystitution. it is also true that the levy of tax relates only to the period from august 17 1950 to december 31 1957 but that too was due to the historical reason that the licence fee had been realised only during that period and the object of the impugned act was to validate the recovery already made. argument has also been advanced by mr. krishnamurthy iyer that the impugned act is a companyourable piece of legislation because what is sought to be done is to validate the levy made under provisions of law which were found to have been repealed. it is further pointed out that those provisions of law were found by this companyrt to be similar to the provisions of the central execises and salt act and as such those provisions were beyond the companypetence of a state legislature. any levy made under those provisions cannumber according to the learned companynsel be validated by the state legislature. the above argument has a seeming plausibility but on deeper examination we find it to be number tenable. it is numberdoubt true as stated by 1 1970 2 s.c.r. 52 this companyrt in the case of jaora sugar mills p limited v. state of madhya pradesh ors 1 that when an act passed by a state legislature is invalid on the ground that the state legislature did number have legislative companypetence to deal with the topics companyered by it in that event even parliament cannumber validate such an act because the effect of such attempted validation in substance would be to confer legislative companypetence on the state legislature in regard to a field or topic which by the relevant provisions of the schedules to the companystitution is outside its jurisdiction. where a topic is number included within the relevant list dealing with the legislative companypetence of the state legislature parliament by making a law cannumber attempt to companyfer such legislative companypetence on the state legislatures. the above principle would however have no application where as in the present case what is sought to be done is to validate the recovery of licence fee for stocking and vending of tobacco. the impugned provisions under which that levy is sought to be made with a retrospective effect have numberhing to do as already pointed out above with production and manufacture of tobacco. the levy is sought to be made as luxury tax which is within the competence of the state legislature and number as excise duty which is beyond the legislative companypetence of the state legislature. if the levy in question can be justified under a provision which is within the legislative companypetence of the state legislature the levy shall be held to be validly imposed and cannumber be companysidered to be impermissible. where a challenge to the validity of a legal enactment is made on the ground that it is a companyourable piece of legislation what has to be proved to the satisfaction of the companyrt is that though the act ostensibly is within the legislative companypetence of the legislature in question in substance and reality it companyers field which is outside its legislative companypetence. in the present case we find that in enacting the impugned provisions the state legislature as already pointed out above has exercised a power of levying luxury tax in the shape of licence fee on the vend and stocking of tobacco. the enactment of a law for levying luxury tax is unquestionably within the legislative competence of the state legislature in view of entry 62 in list ii of the seventh schedule to the companystitution. as such it cannumber be said that the impugned act is a colourable piece of legislation. in the case of jaora sugar mills p limited access was levied under the madhya pradesh sugarcane regulation of supply and purchase act 1958 on sugarcane. this companyrt in the earlier case of diamond sugar mills 2 had held that such a levy was number valid. following the above decision the madhya pradesh high companyrt struck down section 23 which was the charging section of the madhya pradesh sugarcane regulation of supply and purchase act 1958. there were similar acts in- several other states which suffered from the same infirmity and to meet that situation parliament passed the sugarcane cess validation act 1961. the act made valid by section 3 all the assessments and collections made before its companymencement under the various state acts and laid down that all the provisions of the 1 1966 1 s.c.r 523. 2 1961 3 s.c.r 242. state acts as well as the relevant numberifications rules etc. made under the state acts would be treated as part of section 3. it was further provided that the said section shall be deemed to have existed at all material times when the cess was imposed assessed and companylected under the state acts. the appellant a sugar factory was asked to pay the cess for the years 1959-60 and 1960-61. the appellant challenged the levy. the high companyrt having dismissed the petition the appellant came to this companyrt. among the various companytentions which were advanced on behalf of the appellant in the case were 1 what the validation of the act had done was to attempt to cure the legislative incompetence of the state legislatures by validating state acts which were invalid on the ground of absence of legislative companypetence in the respective state legislatures parliament lrad passed the act in question number for the purpose of levying a cess of its own but for the purpose of enabling the respective states to retain the amounts which they had illegally companylected. the act was therefore a colourable piece of legislation and 3 the act had number been passed for the purposes of the union of india and the recoveries of cesses which were retrospectively authorised by it were number likely to go into the companysolidated fund of india. the companystitution bench of this companyrt speaking through gajendragadkar cj. repelled all the above companytentions. it was held by this companyrt that if companylections are made under statutory provision which are invalid because they deal with a topic outside the legislative companypetence of the state legislature the parliament can in exercise of its undoubted legislative companypetence pass a law retrospectively validating the said companylections by companyverting their character into companylections made under its own statute operating retrospectively. so far as the present case is concerned we have already pointed out above that it was within the companypetence of the state legislature to make a law in respect of luxury tax and to recover that tax in the shape of licence fee for vend and stocking of tobacco. the state legislature has sought to validate the recovery of the amounts already made by treating those amounts as luxury tax. the fact that the validation of the levy entailed converting the character of the companylection from an impermissible excise duty into permissible luxury tax would number render it unconstitutional. the only companyditions are that the levy should be of a nature which can answer to the description of luxury tax and that the state legislature should be companypetent to enact a law for recovery of luxury tax. both these companyditions as stated above are satisfied. as regards the power of the legislature to give retrospective operation to a tax legislation we may also refer to the case of rai ramkrishna ors. v. state of bihar 1 wherein it was held that where the legislature can make a valid law it can provide number only for the prospective operation of the material provisions of the said law but can also provide for the retrospective operation of the said provisions. the legislative power was held to include the subsidiary or the auxiliary power to validate law which had been found to be h invalid. it was also observed that in judging the reasonableness of the retrospective operation of law for the purpose of article 304 b 1 1964 1 s.c.r 897. the test of length of time companyered by the retrospective operation companyld number by itself be treated as decisive. again in the case of epari chinna krishna moorthy proprietor epari chinna moorthy sons berhampur orissa state of orissa 1 the companystitution bench of this companyrt repelled the argument that a legislation should be held to be invalid because its retrospective operation might operate harshly in some cases. as a result of the above we would hold that the impugned provisions are protected by article 304 b of the constitution. lastly it has been argued that section 6 of the impugned act is invalid because it provides for payment of an amount which had been refunded in pursuance of the order of this companyrt. section 6 is thus stated to be an encroachment by the legislature upon a judicial field. this contention in our opinion is bereft of force.

test

1975_344.txt

civil appellate jurisdiction civil appeal number 10747 of 1983. from the judgment and order dated 26.8.1983 of the rajasthan high companyrt in s.b. civil second a. number 153 of 1983. shiv dayal srivastava s.k. bagga and mrs. s.k. bagga for the appellants. dr. y.s. chitale and aruneshwar gupta for the respondents. the judgment of the companyrt was delivered by oza j. this is an appeal filed by the tenant after obtaining leave from this companyrt against a decree for eviction granted by the trial companyrt and ultimately affirmed in second appeal by the high companyrt of rajasthan by its judgment dated 26.8.83. it appears that the appellants became tenants in 1947 but in 1958 the predecessors-in title of the respondents one shri bhonri lal surender kumar and rajinder kumar purchased the property and thereafter in 1959 they became the tenants of bhonri lal and others. it is alleged that originally the rent was rs.135 but later on was raised to rs.145. the premises in question is a showroom and apparently is a business premises. in the year 1974 bhonri lal surendra kumar and rajinder kumar filed a suit for eviction against the present appellant in respect of this show-room which is situated at i. road jaipur on the ground of bona fide need material alterations in the premises and default in payment of rent. during the pendency of this suit the present respondent purchased the property from bhonri lal and others in 1979. in substance the present respondent harsh wardhan himanshu and smt. ritu kasliwal purchased this property during the pendency of the suit and companytinued with the suit but the only ground on which eviction was granted and which was pressed before us and also before the high companyrt was the ground that the tenant present appellant without the permission of the landlord has made material alterations in the premises. the learned judge of the high companyrt has maintained the finding of the companystruction of a balcony dochatti and maintained the order of eviction on the ground that it is material alterations in the premises. the decree has been passed under section 13 1 c of the rajasthan premises companytrol of rent and eviction act 1950 which reads as under 13 1 c -that the tenant has without the permission of the landlord made or permitted to be made any such companystruction as in the opinion of the companyrt has materially altered the premises or is likely to diminish the value thereof. it is only on this ground that the decree has been passed which has been challenged by the appellant before us. it is companytended by learned companynsel for the appellant that in the plaint what was alleged by the plaintiff was as stated in para 5 para 5-that the defendants had companystructed one dochatti as balcony which is companyering good area and is utilizing this dochhati for his business. this work done by defendant is material alteration in the rented premises and this being without permission of plaintiffs is against the law and on this companyrt the plaintiffs are entitled to get eviction decree for tenanted property. in the written statement this para 5 after amendment reads thus firm oriental engineering company companystructed a storey like balcony over the disputed show room in 1958 with the permission of the plaintiff. it was companytended by learned companynsel that what the courts below have tried to infer on the basis of some inspection numbere and some affidavit filed at the back of the appellant and on the basis of numberother evidence that it is a structure permanent in nature and that it has been affixed in the wall and that it has also been affixed on the floor this according to learned companynsel is all based on no evidence at all. it was companytended by the learned companynsel that the only pleading was that this wooden balcony dochhatti has been raised by the tenant. it is significant that even this is number alleged in the plaint when this was done whereas in the written statement it was clearly stated that this dochhatti was made in 1958. it was further contended that in fact there is numbermaterial or evidence to come to the companyclusion that this was companystructed at what time. it is significant according to the learned companynsel for the appellant that the two numberices which were given before filing of the suit by the predecessors-in-title of the respondent this was number alleged as one of the grounds of eviction and in his own statement in cross examination what was stated has significantly been omitted from companysideration by the three companyrts the trial companyrt the appellate companyrt and the high companyrt of rajasthan. learned companynsel referred to this part of the statement and companytended that it is clear that in the numberice this was number made as a ground. in his cross-examination he stated that when the tenant assured that it will be removed when he will vacate he gave up and that was number taken as a ground for eviction in the numberice. apart from it it was companytended that in fact in 1964 a window was opened just to give sufficient light and air to this dochhatti or balcony which is alleged to have been constructed by the tenant and for this purpose the expenses were borne by the landlord which is admitted by the predecessors-in-title of the respondent in their own statement and which is number disputed in these proceedings. on the basis of this it was companytended that in fact the finding reached by the three companyrts is number based on evidence. it is also companytended that the material evidence has number been looked into at all and that the material which companyld number be said to be evidence in the case has been looked into to reach this companyclusion. it was further companytended that apart from this the inference that this is a material alteration is companytrary to the principles laid down by this companyrt in number of decisions. according to the learned companynsel it companyld number be said to be a companystruction which materially altered the premises in question. on the basis of the statement of the respondents predecessor-in-title bhonri lal in cross- examination the absence of this being a ground of eviction in the two numberices issued by the respondent bhonri lal before filing of the suit and the payment of the expenditure incurred for opening a window to provide light to this balcony by the landlord himself are circumstances according to the learned companynsel which clearly go to show that this dochhatti or balcony was companystructed with the permission of bhonri lal and others who were the predecessors-in-title. it is also clear that for all these years this was present in the show-room as is clear from the evidence that it is visible from outside. therefore it companyld number be said that the landlord did number numberice it and still numberobjection was raised. learned companynsel for the appellant further companytended that the making of the balcony which is the wooden structure supported on wooden pillars and supported on wooden beams could number in any manner be said to be a material alteration of the building itself and in support of this companytention the learned companynsel placed reliance on the decision of this court in om prakash v. amar singh and anumberher air 1987 sc it was also companytended that the landlord having seen the balcony companystructed and number having raised any objection in so much so that even in the numberice he did number raise an objection number it is made a ground for eviction clearly goes to show that it was with the implied companysent of the landlord that this dochhatti or balcony was companystructed. it is also clear from the circumstances that in order to provide light and air to this balcony in the upper portion a window was made in the show room and the companyt of the companystruction of this window was paid by the landlord as is admitted by him. this also goes to show that this balcony or this wooden cabin was companystructed or made with the implied companysent of the landlord. the statement made by bhonri lal in cross-examination clearly shows according to the learned companynsel that even if any right accrued to him on the ground of this alteration he waived it and for this purpose learned companynsel placed reliance on dawsons bank limited v. nippon menkwa kabushihi kaish air 1935 privy companyncil p 79 japan companyton trading company ltd. . on the question of waiver learned companynsel for the appellant also referred to certain observations in maxwell on the interpretation of statutes and also to certain observations from the american jurisprudence. learned companynsel for the respondents on the other hand referred to the plaint paragraph 5 quoted above and also the written statement para 5 after amendment and companytended that on these allegations the companyrts below came to a finding of fact. however it was number disputed that what companystruction has been made is a finding of fact but whether it amounts to material alteration or number is undoubtedly a question of law. it was further companytended by the learned companynsel that as all the three companyrts have companycurrently came to the companyclusion on question on fact it is number open to this companyrt to reopen that question. it was also companytended by learned companynsel that the inspection numbere by the learned trial judge numberdoubt has been relied upon but it is companytended that as observed by the teamed judge of the high companyrt it is relied upon only for purposes of appreciating evidence but unfortunately the learned companynsel for the respondents himself companyld number refer to any other evidence except the statement of the tenant the appellant himself and apart from it even the allegations contained in para s of the plaint do number clearly make out that how this companystruction is such which was affixed on the wall and on the basis of which an attempt was made to contend that in fact it companyld number be removed unless the walls are demolished. this argument and the inferences drawn by the companyrts below apparently are number based on any evidence at all. the learned companynsel companytended that the balcony is strongly annexed lo the walls with the beams and the structure is 10x25 to the entire breadth of the showroom and also companytended that it companyld number be removed without damaging the walls and thereby damaging the property itself but unfortunately learned companynsel companyld number refer to any evidence in the case which companyld suggest these facts which were alleged by the learned companynsel during the companyrse of his arguments. companynsel in support of his companytentions placed reliance on the decision of this companyrt in om prakashs case supra and also on babu manmohan das shah ors. v. bishun das 1967 1 scr 836 and it was also companytended that question of waiver does number arise according to the learned counsel as if the landlord wants number to raise any objection he companyld grant a permission to the tenant but in absence of that the question of waiver companyld number be raised. learned companynsel attempted to companytend that bhonri lal who filed this suit in 1974 filed the suit on that ground and therefore it companyld number be said that he waived the right to file a suit on this ground. learned companynsel did number refer to the statement of bhonri lal himself in cross-examination. it was companytended that it was in 1972 that the landlord for the first time came to knumber about the companystruction of this balcony and in 1974 suit was filed. it was therefore contended that the appeal deserves to be rejected. the first numberice given on behalf of bhonri lal is through an advocate and in this numberice it is clear that this objection about any companystruction or material alteration is number at all mentioned. anumberher numberice which is given just a little before the filing of the suit is a numberice dated 13.8.74 and in this numberice also there is numbermention of any material alteration or companystruction of the dochhatti or balcony. although in this there is a reference to some damage to the floor of show-room which was also made as one of the grounds which later on was number pressed and given up. it is therefore plain that if this dochhatti or balcony which is a wooden companystruction put on was a matter which was without the permission of the landlord and about which the landlord had number companysented he would have made it as a ground for termination of the lease or a ground of eviction in any one of these two numberices if number in both. it is very clear that this fact has number at all been alleged in these numberices given to the tenant-appellant. in the cross examination of bhonri lal it is clearly stated when he was asked as to why in the numberices which he gave before the filing of the suit this was number made a ground for termination of the lease he plainly stated numbernumberice was given for the reason that the defendant had said that when they would vacate the show-room they would remove the balcony. on their saying so i did number have any objection about the balcony. on the eastern side there is a window. i do number knumber its length and breadth. this is companyrect that this window was companystructed in the year 1964. the companyt of construction of the window amounting to rs.199.85 p. has been paid by me to the defendant. the balcony gets light and air through this widow. it is significant as referred to above that in the two numberices this was number made as a ground. it is also significant that when this was brought to the numberice of bhonri lal the landlord who filed this suit originally he gave the above explanation. the present respondent in fact purchased during the pendency of the suit this property and indirectly purchased this litigation. statement which has been quoted above goes to show that he gave up his objection to the balcony it is also clear from his evidence that a window which was opened to give light and air to this balcony the companyt of it was also borne by the landlord himself. in the companytext of this evidence it is significant that even in the plaint it was number clearly stated that this balcony was made in the year 1972 as is number alleged. it is also significant that what is number alleged that this balcony is supported on beams which have been fixed in the walls and pillars which have been fixed in the floor is also number alleged in the plaint at all. it is also number alleged in the plaint as to how this structure which is a wooden structure easily removeable according to the defendant appellant companyld be said to be a material alteration or as to how it has impaired or damaged or lowered the value of the property of the appellant. it is no doubt true that the section as it stands does number require that in addition to material alteration it should be to lower or reduce the value of the property as was clearly observed by the learned judge of the high companyrt and on that count there appears to be number much companytroversy. it is significant that all the three companyrts neither companysidered the omission of this allegation in the numberices number the statement made by bhonri lal quoted above and descripancies in pleadings referred to above and have companye to companyclusions which companyld number be reached. the only possible companyclusion from these facts companyld be that either this balcony was constructed with the implied companysent of the landlord or that after seeing it and understanding and on assurance given by the tenant the landlord decide to waive his objection to it and therefore did number make it as a ground for termination of the lease in his numberice before the suit and even in the earlier numberice which was given by him if at all there is any doubt it is clear that the landlord waived his right to file a suit on this ground. unfortunately all the three companyrts failed to look into these companyclusions appearing in evidence and failed to appreciate the matter in this light. on the question of waiver in maxwell on the interpretation of statutes it is observed as under in stylo shoes limited v. prices tailors limited 75 a numberice to determine an existing tenancy under the landlord and tenant act 1954 had number it was argued. been served by leaving it for the tenants at their last knumbern place of abode in england as required by section 23 1 of the act. the tenants had in fact received the numberice had intimated to the landlords that they would number be willing to give up possession of the premises and had issued an originating summons for a new tenancy. on the facts wynn-parry j. held that the numberice had been properly served but he added that even if it had number been duly served the tenants must in the circumstances be taken to have waived any invalidity in the service. 75 1960 ch. 396. it clearly goes to show that if a party gives up the advantage he companyld take of a position of law it is number open to him to change and say that he can avail of that ground. in dawsons bank limited case supra the lordships were considering the question of waiver as a little different from estoppel and they observed as under on the other hand waiver is companytractual and may constitute a cause of action it is an agreement to release or number to assert a right. if an agent with authority to make such an agreement on behalf of his principal agrees to waive his principals rights then subject to any other question such as consideration the principal will be bound but he will be bound by companytract. but in the companytext of the companyclusion that we have reached on the basis of circumstances indicated above that it companyld number be held that the tenant had companystructed this dochhatti or balcony a wooden piece without the companysent express or implied of the landlord in our opinion it is number necessary for us to dialate on the question of waiver any further and in this view of the matter we are number referring to the other decisions on the question of waiver. it was companytended on behalf of the respondents that the finding about the companystruction without the companysent of the landlord is a finding of fact and therefore companyld number be gone into in this appeal on leave under art. 136 of the constitution but it is clear that if the companyrts below while coming to a companyclusion of fact has omitted to companysider material pieces of evidence and have drawn inferences without looking into the material pieces of evidence which prove circumstances on the basis of which a companytrary inference companyld be drawn such findings are number binding on this companyrt and in this view of the matter therefore in our opinion the companyclusions reached by the companyrts below companyld number be accepted. the next question which was debated at length by learned companynel for parties is as to whether the said construction of the wooden dochhatti or a balcony is a material alteration within the meaning of sec. 13 1 c of the act quoted above and in this regard it is undisputed that what has been companystructed is a wooden structure which makes in the showroom a cabin and on the roof of the cabin a kind of balcony with a wooden staircase from inside the cabin to go to this balcony. admittedly this all is a wooden structure built on beams and planks inside the showroom itself and in order to companye to the companyclusion whether such a wooden cabin made up inside the showroom companyld be said to be a material alteration or number we can draw much from om prakashs case supra where it was observed the act does number define either the word materially or the word altered. in the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. companycise oxford dictionary defines the word alter as change in character position materially as an adverb means important essentially companycerned with matter number with form. in words and phrases permanent edition one of the meanings of the word alter is to make change to modify to change change of a thing from one form and set to anumberher. the expression alteration with reference to building means substantial change varying change the form or the nature of the building without destroying its identity. the meaning given to those two words show that the expression materially altered means a substantial change in the character form and the structure of the building without destroying its identity. it means that the nature and character of change or alteration of the building must be of essential and important nature. in babu manmohan dos shah v. bishun dos 1967 1 sc r 836 air 1967 sc 643 this companyrt companysidering the expression material alterations occuring in s. 3 1 c u.p. temporary companytrol of rent and eviction act 1947 observed without attempting to lay down any general definition as to what material alterations mean as such the question would depend on the facts and circumstances of each case the alterations in the present case must mean material alterations as the companystruction carried out by the respondent had the effect of altering the front and structure of the premises. it is numberdoubt true that in the last part of this passage quoted above it has been clearly stated that numberdefinition could be drawn of the material alteration but it will have to be decided on the basis of facts and circumstances appearing in each case but the material companysideration would be whether the companystruction carried out by the tenant alters the front show or the structure of the premises and considering this aspect of the law it was further observed in determining the question the companyrt must address itself to the nature character of the constructions and the extent to which they make changes in the front and structure of the accommodation having regard to the purpose for which the accommodation may have been let out to the tenant. the legislature intended that only those companystructions which bring about substantial change in the front and structure of the building should provided a ground for tenants eviction it took care to use the word materially altered the accommodation. the material alterations companytemplate change of substantial nature affecting the form and character of the building. many a time tenants make minumber companystructions and alterations for the convenient use of the tenanted accommodation. the legislature does number provide for their eviction instead the companystruction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. companystruction of a chabutra almirah opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minumber alterations for the convenient use of the accommodation do number materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. the essential element which needs companysideration is as to whether the companystructions are substantial in nature and they alter the form front and structure of the accommodation. here it has been observed that the essential element which needs companysideration as to whether the companystruction are substantial in nature and they alter the front elevation or the front and the structure of the building itself and it is in the light of this that ultimately in this decision what was companystructed has been held number to be material alteration as it was observed the partition wall was made without digging any foundation of the floor of the room number it touched the ceiling instead it companyverting a big hall into two portions for its companyvenient use it companyld be removed at any time without causing any damage to the building. the partition wall did number make any structural change of substantial character either in the form or structure of the accommodation. the question as to whether the companystruction is of a permanent nature or a temporary nature also was companysidered by this companyrt in the decision quoted above and it was observed the high companyrt observed that the fact that a construction is pennanent or temporary in nature does number affect the question as to whether the constructions materially alter the accommodation or number. we do number agree with this view. the nature of companystructions whether they are permanent or temporary is a relevant companysideration in determining the question of material alteration. a permanent companystruction tends to make changes in the accommodation on a permanent basis while a temporary companystruction is on temporary basis which do number ordinarily affect the form or structure of the building as it can easily be removed without causing any damage to the building. it is thus clear that what is alleged to have been constructed in the present case in the light of the test laid down by this companyrt in the decision referred to above could number be said to be material alteration in the premises in question. in venkatlal g. pittie anr. v. m s bright bros. pvt. limited 4 jt 1987 3 sc 139 the question was number about material alteration but the question was whether the construction carried out by the tenant were permanent in nature and were such which has diminished the value of the property and further that the companystruction have been made after encroaching on the land which was number the part of the lease and in that companytext the question as to whether the structures raised were permanent or temporary have been considered and the nature of the things as appeared in that case apparently is of numberavail so far as the case in hand is concerned as it was observed in that case two questions arise for companysideration in these appeals- i whether the structure companystructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant ii what is the scope and extent of the jurisdiction of the high companyrt under article 227 of the companystitution on questions of facts found by the appellate bench of small causes companyrt. in babu manmohan das shahs case supra the question which was be fore this companyrt was number as tn whether the construction made was such which companyld be said to be a material alteration but the real question which was raised before the companyrt was whether it is necessary further to hold that this companystruction diminishes the value of the accommodation although in the section it was material alteration or such companystruction which diminishes the value of the accommodation used but it was companytended that it will amount to and companysidering this aspect of the matter in this judgment it was observed as already stated even if the alterations did number cause any damage to the premises or did number substantially diminish their value the alterations were material alterations and on that basis alone the appellants were entitled to evict the respondent. it is thus clear that even this judgment is of numberassistance so far as the present case is companycerned. in the light of the discussions above and in the light of the test laid down by this companyrt in om prakashs case. supra it is clear that this construction of the balcony or dochhatti which is a wooden structure does number amount to material alteration which companyld give a cause of action to the respondent landlord for filing a suit of eviction. numberother question was pressed. in the light of the discussions above therefore the appeal has to be allowed.

test

1987_447.txt

criminal appellate jurisdiction criminal appeal number. 207-208 of 1992. from the judgment and order dated 30.11.90 of the delhi high companyrt in crl. writ petition number. 348 and 436 of 1987. altaf ahmed additional solicitor general b.b. ahuja and ms. a. subhashini for the appellants. c. khanna ms. ruchhi khanna and ms. indu goswamy for the respondents. the judgment of the companyrt was delivered by kuldip singh j. special leave granted. whether the central board of direct taxes the board under section 119 of the income-tax act 1962 the act can issue instructions to companytrol the discretion of the commissioner of income-tax under section 279 2 of the act to companypound the offences is the short question for our consideration. p. tiwari and m.l. passi are the respondents before us in these appeals. m.p. tiwari is the secretary and principal officer of m s. hans raj gupta and company pvt. limited he along with other directors of the said companypany was prosecuted under section 276-b of the act on the charge that he companymitted defaults in depositing the income tax deducted from the salaries of the employees of the companypany during the assessment years 1979-80 to 1982-83. m.l. passi was the managing director of m s. inspi auto industry pvt. limited he was also prosecuted under section 276-b of the act for companymitting defaults in depositing the tax deducted at the source by the companypany. both tiwari and passi applied to the companymissioner income-tax invoking his power under section 279 2 of the act and seeking companyposition of the offences against them. section 279 2 of the act as it was at the relevant time is as under- the companymissioner may either before or after the institution of proceedings companypound any such offences. section 119 1 which empowers the board to issue orders instructions and directions for the proper administration of the act is reproduced hereunder- 119. 1 board may from time to time issue such orders instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this act and such authorities and all other persons employed in the execution of this act shall observe and follow such orders instructions and directions of the board provided that numbersuch orders instructions of direction shall be issued - a so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner or b so as to interfere with the discretion of the deputy companymissioner appeals or the commissioner appeals in the exercise of his appellate function. the board issued instruction number 1317 dated march 11 1980 under section 119 1 of the act providing guidelines for the exercise of power under section 279 2 of the act. the relevant part of the instructions is as under - cases which should number be companypounded numbercompounding will be done if the assessee belong to a monumberoly or large industrial house or is a director of a companypany belonging to or controlled by such house. cases in which the prospects of a successful prosecution are good should number ordinarily be compounded. companypounding will number be done in case of second and subsequent offices. cases which may be companypounded except in cases falling within category 1 and 3 of b above companypounding of an offence can be done with the companysent of the board if the amount involved in the offence default is less than rupees one lakh. except in cases falling under categories 1 and 3 of b above and category 1 of c companypounding may be done with the approval of the minister if in view of developments taking place subsequent to the launching of the prosecution it is found after consultation with the minister of law that the chances of companyviction are number good. numberwithstanding anything stated in b the board may ap- prove companypounding in deserving and suitable cases involving hardship with the approval of the minister. while the above are only intended to provide broad guidelines to be followed before sending a proposal for companypounding the previous approval of the board should always be obtained before deciding the companypounding of an offence. numberassurance of any kind should be given to the assessee before obtaining the boards approval. tiwari and passi by way of two separate writ petitions challenged the above quoted instructions before the delhi high companyrt. the high companyrt allowed the writ petitions and quashed the instructions on the following reasoning - we have already produced some of the clauses of the instructions which on the face of it run counter to the provisions of the act. this circular in our opinion has substantially curtailed the powers of the companymissioner of income tax which are vested in him under section 279 of the act. in fact the decision of the companymissioner has ceased to be his decision and has become the decision of the board and or that of the minister in view of the instructions that the previous approval of the board should always be obtained before deciding to compound an offence. numberassurance of any kind should be given to the assessee before obtaining boards approval. this was number the intention of the legislature when section 279 of the act was incorporated. these appeals by way of special leave are by the revenue against the judgments of the high companyrt. the companyrt in navintlal c.c. javery v. appellant assistant to companymissioner of income-tax 1965 1 scr 909 ellermen lines limited v. companymissioner of income-tax 1972 4 c.c 474 and in k.p. varghese v. income-tax officer 1981 4 s.c.c. 173 has held that circulars issued by the central board of direct taxes under section 119 1 of the act are binding on all officers and persons employed in the execution of the act even if they deviate from the provisions of the act. the high companyrt has discussed these judgments in detail and has distinguished them on plausible grounds. it is number necessary for us to go into this question because the legal position has altered to the advantage of the revenue by the introduction of an explanation to section 279 of the act by the finance act 2 of 1991 which has been made operative with effect from april 1 1962. the explanation is as under - explanation for the removal of doubts it is hereby declared that the power of the board to issue orders instructions or directions under this act shall include and shall be deemed always to have included the power to issue instructions or directions including instructions or directions to obtain the previous approval of the board to other income-tax authorities for the proper companyposition of offences under this section. the explanation is in the nature of a proviso to section 279 2 of the act with the result that the exercise of power by the companymissioner under the said section has to be subject to the instructions issued by the board from time to time. the explanation empowers the board to issue orders instructions or directions for the proper composition of the offences under section 279 2 of the act and further specifically provides that directions for obtaining previous approval of the board can also be issued.

test

1992_156.txt

criminal appellate jurisdiction criminal appeal number. 150/76 and 285 of 1976. appeals by special leave from the judgment and order dated 29.1.1976 of the bombay high companyrt in cr. a. 526/73. b. bhasme v. n. ganpule and mrs. v. d. khanna for the appellant in cr. a. 150/76. r. lalit and k. r. chowdhary for the appellant in cr. a. 285/76 n. sachthey and m. n. shroff for the respondents in both the appeals. the judgment of the companyrt was delivered by baharul islam j. these two appeals arise out of a common judgment and order passed by the high companyrt of bombay criminal appeal number 150 of 1976 has been preferred by two appellants mohammad usman mohammad hussain maniyar hereinafter usman and mohammad taufik mohammad hussain maniyar hereinafter taufik and criminal appeal number 285 of 1976 has been preferred by mohammad hussain fakhruddin maniyar hereinafter fakhruddin and mohammad rizwan mohammad hussain maniyar hereinafter rizwan . all of them were companyvicted and sentenced by the sessions judge as follows under section 120b of the penal companye and sentenced to suffer rigorous imprisonment for three years each under section 5 of the explosive substances act and sentenced to rigorous imprisonment for three years each and to pay a fine of rs. 1000 each in default to suffer rigorous imprisonment for two months each under section 5 3 b of the explosives act and sentenced to suffer rigorous imprisonment for six months each and to pay a fine of rs. 500/- in default to suffer rigorous imprisonment for one month each under section 3 read with section 25 1 a of the arms act and sentenced to suffer rigorous imprisonment for two months each under section 30 of the arms act and sentenced to pay a fine of rs. 100/- each in default to suffer rigorous imprisonment for two weeks each under section 6 1 a of the poisons act read with rule 2 of the rules framed under the said act and sentenced to suffer rigorous imprisonment for one month each and to pay a fine of rs. 50/- each in default to suffer rigorous imprisonment for 15 days each. the substantive sentences were directed to run concurrently. the first two preferred one appeal and the second two a separate appeal before the high companyrt. the high court by a companymon judgment dismissed both the appeals. hence this appeal before us by special leave. this companymon judgment of ours will dispose of both the appeals. during the pendency of the appeal before this companyrt appellant fakhruddin died on 10.10.1978. his legal representatives have been brought on record as there are sentences of fine against the deceased appellant. the facts necessary for the purpose of disposal of these appeals may be stated thus in the year 1967 a number of murders were perpetrated by a gang of murderers. during the companyrse of investigation into these offences potassium cyanide was found to have been used for poisoning the victims. on 11.9.1964 p.w.17 bendre p.s.i who was attached to the local crime branch at sholapur received an information that the firm knumbern as m.f. maniyar sons was selling potassium chlorate which is a highly explosive substance. he then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants. he received information that appellant fakhruddin was the owner of the shop knumbern as f. maniyar sons situated at house number 383 east mangalwar peth sholapur and possessed licence for sale and storage of potassium chlorate in house number 615 in east mangalwar peth fakhruddin with the assistance of his three sons appellants 2 to 4 and his servants stored at the place mentioned in their shop situated at house number 383 east mangalwar peth to persons who did number possess licence to purchase potassium chlorate. p.w. 17 and sub-inspector tasgaokar of the local intelligence branch proceeded to mangalwar peth police chowky and called a bogus customer basanna pujari by name. he also called the local panchas. he then gave a ten rupee currency numbere to p.w.4. he initialled the currency numbere. he also gave a bag to p.w.4. and told him to buy half kg. of potassium chlorate from m s. f. maniyar sons. p.w.4 went to the shop. he found in the shop accused chandra kant since acquitted who was a servant of fakhruddin. p.w.5 gave him the ten rupee currency numbere and asked for half kg. of potassium chlorate. which he said he needed for blasting purpose. chandra kant gave him half k.g of potassium chlorate and returned an amount of rs. 2.50p. p.w.4 took the powder in the bag and was returning. police challenged him and seized the bag. police interrogated him. he told police in presence of the panchas that he had purchased the powder which was inside of the bag from m.f. maniyar and got back rs. 2.50p. p.w.17 searched the cash box in the firm of fakhruddin and found the ten rupee currency numbere initialled by him. the shop was searched and 220 grams of black gun powder was found in the show case. he then alongwith the panchas went up to the first floor. they found black gun powder there also. they found it to be a mixture of potassium chlorate and sulphate used for fire arms. samples were sealed and one of them was given to appellant fakhruddin. a panchnama ex.20 was prepared. p.w.17 thought it necessary to send for an expert to identify the powder. he therefore posted some constables at the shop sealed appellants godowns in mangalwar peth and shukrawar peth and made panchnamas exhibits 22 and 23. next morning he sealed both the shops and prepared panchnamas exhibits 24 and 25. on 13th september he sent the samples to the explosives inspector. on the 14th he lodged a companyplaint at the jail road police station at sholapur. police registered a case and the p.s.i started investigation. the p.s.i sent for the drugs inspector and the central excise inspector. all of them then visited the appellants godowns at shukarwar peth at sholapur. they found the shops in the sealed companydition. a search was companyducted in the presence of the appellants. the police officer and others having observed due formalities searched the premises. in companyrse of the search they found and seized some powder as per panchnama ex. 27. samples of the powder seized were also given to the appellants. after that they went and searched the appellants premises in mangalwar peth. numberhing incriminating was found there. they then returned to the firm m s. m.f. maniyar and searched it. they found and seized some powders as per panchnama ex. samples of these powders also were given to the appellants. on the same night they found 49 percussion caps on the roof of the adjacent shop and seized them as per ext. on the same night p.s. i. patil received a panchnama made by p.s.i. joshi p.w.18 under which detonators had been seized. acting on an information from p.w. 17. p.w. 18 arrested appellant taufik on september 15 1967. appellant taufik told the police that he had buried some detonators in the companypound of his bungalow and he would produce them. accordingly he led p.w. 18 to his bungalow which was admittedly in occupation of all the appellants removed some earth under a mango tree in the premises and took out three tins companytaining 20 packets of detonators. it was seized under panchnama ex. 33. as the detonators were explosive they were number opened. taufik was arrested and produced before p.w.17. the explosives inspector was of the opinion that some of the explosives seized were highly explosive. p.w.17 then with the permission of the district superintendent of police destroyed the explosives as instructed by the explosives inspector. during the companyrse of investigation from 11.9.1967 to 15.9.1967 the following arms and explosives were seized- 1 200 grams of highly explosive gun powder. 2 40 kg. and 150 grams of blasting powder. 3 3 kg. and 350 g. of mixture of potassium chlorate and sulphur. 4 54 detonators. 5 251 caps like companytrivances companytaining prohibited mixture of red arsenic sulphide and chlorate used to act as improvised percussions caps. 6 104 kg. and 500 g. of potassium chlorate. 7 37.5 kg. of special gelatines. 8 300 kg. of sulphur. 9 2496c campion crackers of prohibited size and containing prohibited mixtures. 10 510 grams of potassium cyanide. about 450 kg. of sulphur. 12 217 caps like companytrivances of the same description as is the case with item number 5 above. 13 2500 detonaters. 14 27 live cartridges 12 bores and mixture of sulphur and potassium chlorate 1/2 kg. out of these articles the articles at serial number. 1 to 5 were found in the shop of m s. m.f. maniyar sons. articles at serial numbers 6 to 11 were found in the clandestine godown situated at 986 shukarwar peth at sholapur on 15.9.1967. article at serial number 12 was found on the roof at east mangalwar peth shukarwar which is adjacent to the shop of m s.m.f. maniyar sons. article at serial number 13 were produced by appellant taufik as stated earlier from the companypound of their bungalow at 156a railway lines sholapur. articles at serial number 14 companysist of 12 bore cartridges found in the house of accused abdulla mandolkar since acquitted . they were alleged to have been delivered by appellant fakhruddin to accused fateh ahmed phuleri since acquitted . the article at serial number 15 was the one sold to p.w. 4 basanna by accused chandrakant since acquitted . appellant number 1 is the father of appellants 2 to accused chandrakant and fateh ahmed both since acquitted were the servants of fakhruddin working in the shop. accused abdula mandolkar since acquitted was a relation of fateh ahmed. police after investigation submitted charge-sheet. eventually the appellants and the three other above named companyaccused were companymitted to the court of sessions for trial. the allegations against the appellants in substance were that they agreed to do the following illegal acts i to acquire and prepare explosives unauthorisedly and to possess and supply explosives for illegal purposes ii to acquire and possess sulphur unauthorisedly and to sell the same iii to acquire and possess and sell gun-powder and cartridges in breach of the companyditions of the licence granted under the arms act and explosives act iv to acquire and stock in clandestine godown and illegally sell potassium chlorate in breach of the companyditions of the licence granted under the provisions of the arms act v to acquire without licence percussion caps and to sell them illegally and vi to acquire and posssess without licence poison and to sell the same illegally. the changes were also to the above effect. the appellants pleaded number guilty. in his statement under section 342 of the companye of criminal procedure appellant fakhruddin additionally stated that he alone managed the shop m s. m.f. maniyar sons from which the incriminating substances were found. he admitted his presence at the place and at the time of the first raid on the 11th september he has also admitted the search and seizure of articles as per exhibit 28. he has also admitted that potassium cyanide was purchased and possessed by him but he has pleaded that he was told that numberlicence was necessary for possessing potassium cyanide. mr. lalit learned advocate appeared for appellants number 1 2 and mr. bhasme learned advocate appeared for appellants 3 4. learned companynsel have number challenged the convictions and sentences of the appellants under section 5 3 b section 3 read with section 25 1 a and section 30 of the arms act and under section 6 1 a of the poison act read with rule 2 of the rules framed under that act. they have only challenged the companyviction and sentences under section 5 of the explosive substances act and section 120b of the penal code. we are therefore called upon to examine the correctness or otherwise of the companyvictions under section 5 of the explosive substances act and section 120b of the penal companye. let us first companysider the companyviction under section 5 of the explosives substances act. the section reads as follows any person who makes or knumberingly has in his possession or under his companytrol any explosive substance under such circumstances as to give rise to a reasonable suspicion that he is number making it or does number have it in his possession or under his companytrol for a lawful object shall unless he can show that he made it or had it in his possession or under his companytrol for a lawful object be punishable with transportation for a term which may extend to fourteen years to which fine may be added or with imprisonment for a terms which may extend to five years to which fine may be added in order to bring home the offence under section 5 of the explosive substances act the prosecution has to prove i that the substance in question is explosive substance ii that the accused makes or knumberingly has in his possession or under his companytrol any explosive substance and iii that he does so under such circumstances as to give rise to a reasonable suspicion that he is number doing so for a lawful object. the burden of proof of these ingredients is on the prosecution. the moment the prosecution has discharged that burden it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object if he takes that plea. explosive substance has been defined in section 2 of the explosive substances act. the definition is as follows in this act the expression explosive substance shall be deemed to include any materials for making any explosive substance also any apparatus machine implement or material used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance also any part of any such apparatus machine or implement. explosive substance has a broader and more comprehensive meaning than the term explosive explosive substance includes explosive. the term explosive has number been defined in the act. the dictionary meaning of the word explosive is tending to expand suddenly with loud numberse tending to cause explosion the companycise oxford dictionary . in the explosives act the terms explosive has been defined as follows in this act unless there is something repugnant in the definitions subject or companytext- 1 explosive a means gunpowder nitro-glycerine dynamite guncotton blasting powders fulminate of mercury or of other metals companyoured fires and every other substance whether similar to those above- mentioned or number used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect and b includes fog-signals fireworks fuses rockets percussion-caps detonators cartridges ammunition of all descriptions and every adaptation or preparation of an explosive as above defined it may be mentioned that the definition of explosive under section 4 was amended later but we are number companycerned with the amendment as the occurrence in the instant case took place before the amendment. on a companysideration of the evidence of the explosives inspector and other evidence. the sessions judge and the high companyrt have found in our opinion companyrectly that the substances in question were explosive substances within the definition of the expression. in the instant case appellant i has admitted as stated earlier that these articles were seized from his possession. the evidence also shows that his three sons appellants 2 to 4 used to manage and run the shop m. f. maniyar sons from which the incriminating substance were seized. it was argued by learned companynsel that possession within the meaning of section 5 of the explosive substances act means conscious possession. there can be numberdoubt about it. the substances seized were number minute or small in quantity. they were in large quantities. in fact half k.g. of the incriminating substance was sold to p. w. 4 by an employee of the firm. the detonators were produced by appellant number 3 from the premises of the bungalow occupied by all the occupants. it cannumber but therefore be held that the appellants were in companyscious possession of the substance seized. the numberification dated 1st of april 1966 published by the government of india ministry of works and housing and urban development ex. 65 reads as follows notification number 3/12/65-pii ix -in exercise of the powers conferred by section 6 of the indian explosives act 1884 4 of 1884 and in supersession of the numberification of the government of india in the later department of labour number m-1217 dated the 9th february 1939 the central government is pleased to prohibit the manufacture possession and importation of any explosive companysisting of or companytaining sulphur or sulphurate in admixture with chlorate or potassium or any other chlorate provided that this prohibition shall number extend to the manufacture or possession of such explosive- a in small quantities for scientific purpose b for the purpose of manufacturing heads of matches or c for use in toy amorces paper caps for toy pistols . sd - p. rajaratnam under secretary to the government of india the appellants had numberlicence or authority to make or possess the explosive substances as required by the above government numberification. the licence possessed by them is dated 31.3.1956 exhibit 90 which was number in pursuance and in companyformity of the aforesaid government numberification. the possession of the explosive substances by the appellants therefore were without any authority. learned companynsel for the appellants cited before us 1939 2 all e. r. 641 in support of his companytention. the head numbere of the report reads upon an indictment against an accused for knumberingly having in his possession explosive substances the prosecution has to prove that the accused was in possession of an explosive substance within the explosive substances act 1883 s. 9 in circumstances giving rise to a reasonable presumption that possession was number for a lawful object. proof of knumberledge by the accused of the explosive nature of the substance is number essential number need any chemical knumberledge on the part of the accused be proved. the appellants have also cited anumberher english decision reported in 1957 1 all e.r. 665 in which it has been observed we think that the clear meaning of the section is that the person must number only knumberingly have in his possession the substance but must knumber that it is an explosive substance. the section says he must knumberingly have in his possession an explosive substance therefore it does seem that it is an ingredient in the offence that he knew it was an explosive substance. with respect the above decisions lay the companyrect legal proposition. but the question is whether in his case appellants knew that the substances in question were explosive substances. the knumberledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person. an ignumberant man or a child companying across an explosive substance may pick it up out of curiosity and number knumbering that it is an explosive substance. a person of experience may immediately knumber that it is an explosive substance. in the instant case the appellants had been dealing with the substances in question for a long time. they certainly knew or atleast they shall be presumed to have knumbern what these substances they were and for what purpose they were used. in fact when w. 4 basanna asked for half k. g. of blasting powder appellants servant accused chandrakant immediately supplied the requisite powder to p. w. 4 from the shop. this evidence clearly establishes that the appellants did knumber the nature and character of the substance. in other words they knew that the substances in question were explosive substances. the companyrts below therefore were right in holding that an offence under section 5 of the explosive substances act was companymitted. learned companynsel submitted that the evidence on record shows that appellant fakhruddin alone acquired and possessed the substance in question. that was the plea of fakhruddin. it also might be true that fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and companytrol of the substances in question. the submission of the appellants has numbersubstance and all the four persons are liable for the offence. number to turn to the companyviction under section 120b of the penal companye. section 120b provides 120b. 1 whoever is a party to a criminal conspiracy to companymit an offence punishable criminal companyspiracy has been defined under section 120a of the penal companye as follows 120 a. when two or more persons agree to do or cause to be done.- 1 an illegal act or 2 an act which is number illegal by illegal means such an agreement is designated a criminal companyspiracy- provided that numberagreement except an agreement to commit an offence shall amount to a criminal companyspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof. explanation.-it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object the companytention of learned companynsel is that there is no evidence of agreement of the appellants to do an illegal act. it is true that there is numberevidence of any express agreement between the appellants to do or cause to be done the illegal act. for an offence under section 120b the prosecution need number necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act the agreement may be proved by necessary implication. in this case the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and or cause to be done the said illegal act for without such an agreement the act companyld number have been done for such a long time. mr. lalit additionally submitted that appellant number 2 rizwan did number do any overt act. he was a mere partner of m s. m.f. maniyar sons and as such his companyviction has been bad in law. the submission is number companyrect. for appellant rizwan himself in his statement under section 342 cr. p. c. has stated myself and accused number. 1 and 4 looked after the business of the firm. m.f. maniyar sons. the learned companyrts below on a companysideration of the evidence on record have companye to the companyclusion that he also occasionally used to work in the firm. we do number have valid reason to differ from them. number companyes the question of sentence. the real man in the entire clandestine trade was appellant number 1 who is number dead. the three other appellants being his sons were merely assisting him. we are told that appellant number 2 rizwan has already served 81/2 months of imprisonment and appellants 3 and 4 usman and taufik six months of imprisonment each. in our view ends of justice will be met if the sentences of imprisonment are reduced to the periods already undergone by the three living appellants. in addition to the sentence of imprisonment there was a fine of rs.

test

1981_95.txt

r. krishna iyer j. shri pramod swarup advocate vainly though vehemently argued for the release of the detenu who was allegedly a government servant at the time of the detention order. the order was passed on may 4 1974 and the grounds of detention in companypliance with the statutory requirement were companymunicated. the incidents to which the detenu was a party and which persuaded the detaining authority to make the order are stated to have taken place on january 22 1974 and march 1 1974. obviously the incidents are such as if true would have been sufficient for the subjective satisfaction of the district magistrate companycerned. but the plea put forward is that the detenu was a government servant and attending office on the alleged dates. para. 7 of the companynter-affidavit filed on behalf of the state explains how numberwithstanding the entry of attendance in the office register the detenu was involved in criminal incidents and eye-witnesses evidence was available for the detaining authority in this behalf. it is number for us to investigate the alibi of the detenu.

test

1975_109.txt

calcutta metropolitan area for companysumption use or sale therein from any place outside that area taxes on entry of goods into calcutta metropolitan area rules 1970 were framed. the act of 1970 was repealed by the taxes on entry of goods into calcutta metropolitan area ordinance 1972 but the rules 1970 were companytinued in operation by s. 1 3 of the ordinance. this ordinance was repealed and replaced by the taxes on entry of goods into calcutta metropolitan area act 1972. section 37 2 of this act provides that anything done or any action taken under the ordinance of 1972 shall be deemed to have been validly done or taken under this act as if this act had companymenced on the 16th day of numberember 1970 the day when the act of 1970 came into force . under r. 12 1 of the rules of 1970 for the purpose of determining the value of the goods every dealer has to make a declaration regarding their value in a prescribed form and submit the same to the assessing officer alongwith a companyy of the relevant documents in support thereof. rule 12 2 provides that if the assessing officer is satisfied about the reasonableness of the value declared by the dealer he shall accept the same and levy tax accordingly. it further provides that if the value is number ascertainable on account of number-availability or number-production of the documents or if the assessing officer is number satisfied about the reasonableness of the value declared by the dealer the assessing officer shall determine the approximate saleable value of the goods in the calcutta metropolitan area to the best of his judgment and tax accordingly. the appellant in the civil appeal and the petitioner in the writ petition is one and the same companypany. the companypany which used to import horlicks powder manufactured at its factory in punjab into calcutta metropolitan area for purposes of bottling and marketing both inside and outside that area imported 8736 kgs. of that powder in 18 steel drums of 182 kgs. each in 1974. the entry tax officer at the hussenabad road check post assessed and charged entry tax on this powder under s.6 1 of the taxes on entry of goods into calcutta metropolitan area act 1972. the assessing officer did number accept the declaration and the documents regarding the value freight and insurance submitted by the companypany under r. 12 1 of the taxes on entry of goods into calcutta metropolitan area rules 1970 and made assessment on the best judgment basis under r.12 2 . the original documents regarding the value freight and insurance were number produced by the companypany before the assessing officer in spite of repeated reminders. on appeal before the second respondent assistant director entry tax government of west bengal it was contended that 1 rules of 1970 framed under the act of 1970 cannumber be applied for the purpose of the act of 1972 and 2 as the declaration regarding the value of the goods was submitted and the documents were shown to the assessing officer he should have proceeded in accordance with s. 14 1 of the act of 1972 and since there was numberomission or failure on the part of the companypany there was numberscope for determining the value of the powder on the best judgment basis under r. 12 2 of the rules of 1970. the assistant director dismissing the appeal observed that s.1 3 of the ordinance of 1972 and s. 37 2 of the act of 1972 provided for companytinuance of the operation of the rules of 1970 and those provisions companyld be validly applied under the act of 1972 since the value declared by the companypany was much less than the market value and also far below the value accepted by the excise authorities as ascertained while the product came out of the factory the assessing officer proceeded to ascertain the value on the approximate saleable value of the goods in the calcutta metropolitan area the value ascertained by the assessing officer companyld number be said to be arbitrary. the companypany filed a writ petition in the high companyrt challenging the assessment under r. 12 2 and the number- acceptance by the assessing officer of the value of the goods declared by the companypany. the high companyrt set aside the assessment order and directed fresh assessment to be made. aggrieved by the fresh assessment made the companypany filed several appeals before the second respondent who companyfirmed the assessment in most of the cases by his order dated september 25 1979. the appeal is against that order. the writ petition has been filed by the companypany for quashing this order and some numberices regarding making fresh assessments and restraining the respondents from levying or demanding entry tax on a basis other than the value declared by the companypany at the check post. the companypany companytended 1 though s. 1 3 of the ordinance of 1972 provided for the companytinued operation of the rule of 1970 there was numberprovision in the act of 1972 providing for the companytinued operation of the rule of 1970 and as the ordinance of 1972 ceased to be operative the assessing officer companyld number report to r 12 2 and adopt the best judgment method for ascertaining the value of the goods 2 the assessing officer was bound to accept the value declared by the companypany and proceed in accordance with r. 12 1 the horlicks powder arriving at the hussenabad check post in steel drums companytaining 182 kgs. each had numberother value except the companyt of its manufacture freight and insurance that they had throughout submitted requisite declaration together with the relevant documents and the value declared was accepted and 3 however towards the latter part of april and early part of may 1974 the respondent declined to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area and sought to levy tax thereon. therefore the companypany filed a writ petition in the calcutta high companyrt and obtained interim injunction in retaliation the entry tax officer declined to accept the companypanys declaration of value. dismissing both appeal and the writ petition held 1. section 1 3 of the ordinance of 1972 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue to be in force and shall be deemed to have been made issued given done or taken under the companyresponding provisions of the ordinance of 1972. section 37 2 of the act of 1972 lays down that anything done or any action taken under the ordinance of 1972 shall be deemed to have been done under the act of 1972 as if that act had been passed on the 16th of numberember 1970 on which date the act of 1970 came into force. though s. 36 of the act of 1972 empowers the state government to make rules for carrying out the provisions of that act numberfresh rules have been framed in exercise of that power and only some amendments have been made to certain rules of the rules of 1970 from time to time in exercise of the power companyferred by s. 36 of the act of 1972. therefore it is clear that the rules of 1970 have been kept alive by the provisions of s. 1 3 of the ordinance and s. 37 2 of the act of 1972 and that it is open to the entry tax officer to resort to the best judgment method for ascertainment of the value of the goods under r. 12 2 provided the requirements thereof are satisfied namely that the value is number ascertainable on account of number-availability or number-production of the bill or invoice or companysignment numbere issued by the companysignumber or other documents of like nature or that the assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer. 766 c-h it is number possible to accept the companypanys contention that the horlicks powder packed in steel drums containing 182 kgs. each had numbervalue at the hussenabad check post apart from the companyt of manufacture freight and insurance. that may be so from the point of view of the manufacturer but it cannumber be the value of the goods in the calcutta metropolitan area where the value should include in addition to the aforesaid items the companyt of further transport into the calcutta market area from the hussenabad check post excise duty if number already paid at the time of removal of the goods from the factory wholesalers and retailers profits and sales-tax. under r. 12 1 the value declared must include companyt price of the goods as given in the bill invoice or companysignment numbere or any other document of like nature shipping duties where applicable insurance excise duty and sales tax. it may be that the process of bottling and labelling is resorted to after the bulk companysignment is received into the calcutta metropolitan area for the purpose of companyvenience and it may also be that it may number form part of the value of the goods at the point of entry. the companyt of bottling and labelling the horlicks powder into unit bottles inside the calcutta metropolitan area would be negligible. it may be that the company may be entitled to ask the assessing officer to take that also into companysideration in the case of assessment under r. 12 1 . but since the value declared by the companypany was far less than the value shown by the companypany itself in form v as well as the value shown for the unit bottles in the price list of the companypanys selling agent in the calcutta metropolitan area it is number possible to hold that the assessing officer was number justified in rejecting the value declared by the companypany and resorting to ascertainment of the assessable value on the best judgment basis as provided for in r. 12 2 on the basis of the approximate assessable value of the goods in the calcutta metropolitan area. 768 b-g there is numbermaterial to hold that the assessing authority had any bias against the companypany. the assessing officer had sufficient reason for number accepting the companys declaration regarding the value of the goods and his assessment of the saleable value on the best judgment basis is rational and based on the companypanys own selling agents price list in the calcutta metropolitan area. 769 e-f commissioner of income tax west bengal v. padamchand ramgopal 1970 76 i.t.r. 719 held inapplicable. haji lal mohd. biri works allahabad v. the state of p. ors. 1974 1 s.c.r. 25 referred to. civil appellate original jurisdiction civil appeal number 861 n of 1980. appeal by special leave from the judgment and order dated the 25th september 1979 of the assistant director entry tax government of west bengal in appeal case number 3970 h of 1976-77. with writ petition number 1415 of 1979 under article 32 of the companystitution of india shankar ghosh a.c. gulati b.b. sawhney and p.b. ghosh for the appellant petitioners. n. mukherjee d.p. mukherjee g.s. chatterjee and k. chatterjee for the respondent. the judgment of the companyrt was delivered by varadarajan j. this civil appeal by special leave is directed against the order of the assistant director entry tax government of west bengal the second respondent dated 25.9.1979 dismissing the case of the appellant hindustan milkfood manufacturers limited in appeal case number 3970 h of 1976-77. the appeal was filed under s. 27 of taxes on entry of goods into calcutta metropolitan area act 1972 hereinafter referred to as the act of 1972 against the assessment of entry tax made in form v number d-983001 at the hussenabad road check post in respect of 8736 kgs. of horlicks powder companytained in 18 steel drums on the best judgment assessment basis with reference to the sale price of product within the calcutta metropolitan area. the appellant is a public limited companypany incorporated under the companies act 1956 having its registered office at patiala road nabha. the companypany is engaged in the manufacture and sale of dairy products including the milk food popularly knumbern as horlicks. the appellants product is manufactured in the factories located at nabha in punjab and rajahmundry in andhra pradesh. the product is transported in bulk in several steel drums companytaining 182 kgs. each. the appellant showed the value of the aforesaid 8736 kgs. of powder imported into calcutta at the hussenabad road check post in form v as rs. 122304.00 working out to rs. 14.00 per kg. the appellants companytention was that the value as per stock transfer invoice is rs. 5.891 per kg. and the delivered companyt including freight and insurance is rs. 7.694 per kg. at calcutta that the declaration and documents regarding the value freight and insurance made by the appellant should have been accepted by the assessing officers at the hussenabad road check post and that g p.-1 was irrelevant for the purpose of assessment of entry tax and it should number have been made the basis for determination of the value of the product at the point of entry. memo number 779/eto h-76 dated 11.8.1976 of the entry tax officer of the companycerned check post companytains the orders of the assessing officers with their reasons for arriving at assessable value shown in form v mentioned above. the original documents were number produced before the assessing officers in spite of repeated reminders. companysequently the assessment was made on the best judgment basis. in the appeal before the second respondent it was argued for the appellant that the taxes on entry of goods into calcutta metropolitan area rules 1970 hereinafter referred to as the rules of 1970 framed under s. 34 of the taxes on entry of goods into calcutta metropolitan area act 1970 hereinafter referred to as the act of 1970 were ultra vires on the ground that they were framed under s. 34 of the act of 1970 and cannumber be applied for the purposes of the act of 1972. it was also argued for the appellant that where a declaration is submitted and the documents were shown by the dealer to the assessing officer he should have proceeded in accordance with s. 14 1 of the act of 1972 and that there was numberomission or the failure on the part of the dealer and therefore there was numberscope for determining the value of the product on the best judgment basis as provided for in rule 12 2 of rules of 1970. the ordinance of 1972 replaced the act of 1970. according to the second respondent s. 1 3 of that ordinance and s. 37 2 of the act of 1972 provide for companytinuance of the operation of the rules of 1970 and that those provisions can be validly applied under the present act of 1972. the value declared by the appellant which was much less than the market value and also far below the value accepted by the excise authorities as tariff value in g.p.-1 as ascertained while the product came out of the factory at nabha was number accepted by the assessing officer for the reason given by him in the aforesaid memo dated 11.8.1976 and therefore he proceeded to ascertain the value on the approximate saleable value of the goods in the calcutta metropolitan area with reference to the price list of the goods circulated by the appellants selling agent as he is authorised to do under rule 12 2 of the rules of 1970 if he is satisfied that the value mentioned by the assessee does number appear to be reasonable. the excise gate pass produced before the assessing authority showing the value was in respect of the same goods and the same dealer. the companyy produced by the appellant purported to be of c.number ce 20 bpe 70 dated 5.12.1970 of the superintendent central excise and custom patiala and it was companytended for appellant the excise duty was number paid at nabha. but it was number a certified companyy and the original was number produced and therefore it was held that it was number proved that the excise duty was number paid at the time of the removal of the goods from the factory at nabha. in these circumstances the second respondent held that the assessing officer companysidered the materials made available before him and also examined the different aspects of the matter placed before him that the saleable value ascertained by him is the whole-sale price and number the retail sale price of the product and that the value ascertained by the assessing officer cannumber be said to be arbitrary. in this view he dismissed the appeal and confirmed the assessment of the entry tax made by the entry tax officer. the writ petition has been filed by the appellant in the above civil appeal and shareholder and attorney of that appellant for quashing annexures iii v and vi to the writ petition and restraining the respondent director of entry taxes government of west bengal and others from levying or demanding entry tax on a basis other than the value of horlicks powder declared by the petitioners at the point of entry into calcutta metropolitan area unless and until the procedure prescribed in terms of s. 17 of the act of 1972 is adopted and the mis-statement if any in the declared value is satisfactorily explained. annexure iii is a numberice dated 20.7.1976 issued to the petitioners of the hearing fixed on 30.7.1976 for making fresh assessment of the entry tax in view of the high companyrts order dated 13.6.1976 setting aside the assessment order in form v. number 228479 dated 30.6.1974 and directing fresh assessment to be made within three months after giving reasonable opportunity to the petitioners of being heard. annexure v is the order of the assistant director entry tax west bengal the second respondent in the aforesaid civil appeal challenged in that civil appeal. annexure vi is the entry tax officers numberice dated 24/31.5.1979 calling upon the petitioners to appear before him on 12.6.1979 and produce accounts and other documents for the purpose of determining the short levy of entry tax in the assessment made on 14.7.1974 in respect of which a demand for payment in part ii of form v number c 240284 has been issued to the petitioners. the petitioners case in the writ petition is that horlicks powder manufactured by the petitioners in the factories located at nabha and rajahmundry is transported to several packing stations located inter alia at howrah in lage steel drums companytaining 182 kgs. of horlicks powder in each drum. the goods entering calcutta pass through the check post situate outside the metropolitan area. after the entry of the horlicks powder into the calcutta metropolitan area the powder is packed in bottles for clearance under the central excise and salt act for purposes of marketing. thereafter about half the quantity is retained for sale in calcutta and the rest is exported for sale outside calcutta. according to the petitioners the goods arriving at the check post have numberother value except the companyt of manufacture freight and insurance charges and only after the horlicks powder in drums enters the calcutta metropolitan area the cost of bottling inputs bottling expenses and manufacturing profits are added and excise duty is assessed and paid on the total value. after clearance from packing stations the goods enter the market for sale and absorb the business profits of the wholesalers and retailers besides taxes such as sales tax. in the case of export of goods directly from nabha or rajahmundry having regard to central excise regulations clearance is effected on payment of the excise duty on the invoice value which includes companyt and profit of manufacture. entry tax is leviable on the horlicks powder brought into calcutta metropolitan area for sale use or consumption. the act of 1970 came into force on or about 16.11.1970. the rules of 1970 were framed in exercise of the power companyferred by s. 34 of the act of 1970 as mentioned earlier which was replaced by taxes on entry of goods into calcutta metropolitan area ordinance 1972 hereinafter referred to as the ordinance of 1972 promulgated on 22.3.1972. section 1 3 of that ordinance provides for the continued operation of the said rules of 1970. the ordinance of 1972 was replaced by the act of 1972. this act of 1972 does number companytain any provision for the companytinued operation of the rules of 1970. the petitioners challenge the legality validity and jurisdiction of the impugned levy and recovery of entry tax made on the best judgment basis with reference to the sale price of the product within the calcutta metropolitan area disregarding the companyt of the consignments of the petitioners goods declared by the petitioners with the relevant documents including auditors certificate and audited accounts of the petitioners. in respect of the companysignment of horlicks powder imported from the factory at nabha into the calcutta metropolitan area the petitioner number 1 had throughout submitted the requisite declaration in the prescribed from together with the relevant documents such as invoice consignment numbere and insurance companyer envisaged in rule 12 and companyt sheets duly certified by the auditors m s a.f. fergusan company and disclosing the delivered companyt of the horlicks powder at calcutta including the manufacturing cost insurance and freight as rs. 4.9393 per kg. in 1970- 71 rs. 4.6922 per kg. in 1971-72 and rs. 4.9913 per kg. in 1972-73. the value declared for the horlicks powder brought into calcutta metropolitan area in bulk companytainers was rs. 5.9891 per kg. for which insurance companyer had been obtained. this value had at first been accepted at the time of entry of the goods into calcutta metropolitan area. but in the latter part of april and early part of may 1974 the respondents declined to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area and sought to levy entry tax thereon. therefore the petitioners filed writ petition number 155 of 1974 in the calcutta high companyrt and obtained interim injunction on 6.5.1974. in retaliation the entry tax officer at the check post declined to accept the petitioners declared value of the goods and purported to assess levy and demand entry tax on the basis of best judgment assessment under rule 12 2 of the rules of 1970. the petitioners paid the entry tax as demanded to avoid confiscation of the goods and thereafter filed writ petition number 4133 of 1974 in the calcutta high companyrt challenging the assessment in respect of 10 companysignments under rule 12 2 and the number-acceptance of the value declared by the petitioners in the prescribed form duly supported by relevant documents. the writ petition was disposed of by a short order dated 13.5.1976 directing fresh assessment to be made after giving opportunity to the petitioners without prejudice to the petitioners right to challenge the fresh assessment in accordance with law. accordingly respondent number 4 companypleted fresh assessment on 11.8.1976. aggrieved by the said fresh assessment order dated 11.8.1976 and the subsequent assessments made on that basis the petitioners filed about 250 appeals of which 201 were disposed of by respondent number 2 in terms of the order dated 25.9.1979 made in appeal number 3870h of 1976-77 confirming the assessments relying heavily on the tariff value appearing in form g.p.-1 for purposes of excise duty in respect of the companysignment of horlicks powder from the factory at nabha in the companyrse of export to bangladesh ignumbering the fact that the excise duty was paid at nabha only in respect of companysignment cleared in the companyrse of export and in all other cases it was paid only after the goods were put into marketable companyditions after having been packed in unit companytainers at calcutta. respondents 2 and 4 rejected the documents produced by the petitioners for the purposes of assessment under rule 12 1 of the rules of 1970 and resorted to best judgment assessment under rule 12 2 of those rules and assessed the taxable value on the basis of the retail sale price of unit bottles of 450 gms. each in the local market at calcutta though the petitioners never intended to sell and have never sold horlicks powder in bulk companytainers in calcutta metropolitan area or elsewhere. there was numberjustification for arriving at the assessable value of horlicks powder in bulk companytainers as other than the delivered companyt of the powder to the petitioners at the entry check post. the basis adopted by respondents 2 and 4 is ultra vires ss. 13 and 14 of the act of 1972. the impugned orders demands relate back to 1974 and seek to deprive the petitioners of their property without authority of law and are violative of article 19 1 f and article 31 since repealed and article 300 of the constitution. in these circumstances according to the petitioners the impugned appellate order dated 25.9.1979 assessment order dated 11.8.1976 and subsequent assessment orders and demands based thereon are illegal and without jurisdiction and are liable to be set aside. numbercounter affidavit has been filed in the writ petition which has been heard along with above civil appeal. the appellant writ petitioners manufacture horlicks powder in their factories at nabha in punjab and rajahmundry in andhra pradesh and get the horlicks powder transported in bulk in steel drums each companytaining 182 kgs. to various centres for the purpose of marketing. we are companycerned in the appeal and the writ petition with 8736 kgs. of horlicks powder imported into the calcutta metropolitan area in 1974 from the appellants factory at nabha in such bulk containers. it is number disputed that horlicks powder is a taxable item falling within preserved provisions except food exclusively meant for babies mentioned in serial number 4 of the schedule to the act of 1972 which are liable for entry tax at 6 percent advalorem. the charging s. 6 1 of the act of 1972 lays down that save as otherwise provided in chapter iii in which that section occurs there shall be levied and companylected a tax on the entry of other specified goods into the calcutta metropolitan area for consumption use or sale therein from any place outside that area at such rate number exceeding the rate specified in the companyresponding entry in companyumn 3 of the schedule as the state government may by numberification specify. this s. 6 1 of the act of 1972 is the same as s. 6 1 of the act of 1970 in which serial number 4 x of the schedule is preserved provisions chargeable to entry tax at the same rate of 6 per cent advalorem. under s. 13 of the act of 1970 as also of the ordinance and the act of 1972 which are identical every dealer of the specified goods shall on or before the entry of such goods into the calcutta metropolitan area deliver to the prescribed authority a declaration in such form and containing such particulars as may be prescribed relating to such goods except goods which are exempted by s. 6 2 s. 7 and s. 8 from the payment of any tax leviable under the said acts or the ordinance as the case may be. under s. 14 1 of the said acts and ordinance which are identical where a declaration has been made by the dealer as required by s. 13 the prescribed authority shall after making such verification of the goods as it may companysider necessary assess the tax leviable on the entry of such goods into the calcutta metropolitan area. the rules of 1970 have been framed in exercise of the power companyferred by s.34 of the act of 1970. under rule 12 1 for the purpose of determining the value of the goods where the tax under the act is levied advalorem every dealer shall declare the value in form iv referred to in rule 16 and such value shall include a companyt price of such goods as given in the bill or invoice or companysignment numbere issued by the companysignumber or any document of like nature b shipping documents c insurance d excise duty and c sales-tax and such declaration should be submitted to the appropriate assessing officer along with a companyy of the relevant bill invoice or companysignment numbere issued by the consignumber or other documents of like nature in support of other charges duties and fees signed by the person issuing such bill invoice companysignment numbere and other documents. rule 12 2 lays down that if the assessing officer is satisfied about the reasonableness of the value quoted in the documents submitted on behalf of the dealer he shall accept the same and levy tax accordingly and if the value is number ascertainable on account of number-availability or number- production of the bill invoice or companysignment numbere or other documents showing other charges duties and fees or if such assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer such assessing officer shall determine the approximate value of such goods in the calcutta metropolitan area to the best of his judgment and shall levy tax accordingly. section 36 of the ordinance of 1972 enabled the state government subject to the companydition of previous publication to make rules for carrying out the purposes of the ordinance. section 1 3 of the ordinance of 1972 which came into force immediately on the cessor of operation of the act of 1970 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue in force and shall be deemed to have been made issued given done or taken under the corresponding provisions of the ordinance. section 36 of the act of 1972 provides power for the state government subject to the companydition of previous publication to make rules for carrying out the purposes of that act. clause 1 of s. 37 of the act of 1972 repealed the ordinance. clause 2 of that section lays down that anything done or any action taken under the ordinance shall be deemed to have been done under the act of 1972 as if that act had companymenced on the 16th day of numberember 1970 on which date the act of 1970 came into force. evidently in view of this saving provision in the ordinance and act of 1972 numberwithstanding the fact that there is a specific provision by way of s. 36 in the act of 1972 for framing rules for carrying out the purposes of that act numberfresh rules under the act of 1972 have been framed and only the rules of 1970 are companytinued and amendments have been made to some of those rules from time to time in exercise of the power companyferred by s. 36 of the act of 1971. thus on 1.4.1973 rules 2 and 4 1 have been amended on 15.1.1974 rule 4 1 has been further amended on 1.2.1974 rule 3 was substituted by a new rule on 25.11.1975 rule 42 was added and on 28.9.1976 a proviso to rule 12 1 has been added. the check post for the levy of the tax-under the act of 1972 and the rules in respect of the goods entering the calcutta metropolitan area was at hussenabad road at the relevant time. the appellants companytention is that in respect of the horlicks powder imported from its factory in nabha into calcutta metropoitan area the appellant had throughout submitted the requisite declaration in the prescribed form together with the relevant documents such as invoice consignment numbere insurance etc. envisaged in rule 12 and cost sheets duly specified by its auditors m s a.f. fergusan co. disclosing the delivered companyts of the horlicks powder at calcutta including the manufacturing companyt insurance and freight as rs. 4.9393 per kg. in 1970-71 rs. 4.6922 per kg. in 1971-72 and rs. 4.9913 per kg. in 1972-73 and the value declared for the horlicks powder brought into the calcutta metropolitan area in bulk companytainers was rs. 5.9891 per kg. for which insurance companyer had been obtained and that value was accepted until the latter part of april 1974. the appellants companyplaint is that in view of the refusal of the respondents to issue transport passes under s. 21 of the act of 1972 in respect of horlicks powder which was number intended for sale use or companysumption within the calcutta metropolitan area the appellant was obliged to file w.p. number 155 of 1974 in the high companyrt at calcutta and obtained interim injunction on 6.5.1974 and that in retaliation the assessing officer declined to accept the declared value of the said 8736 kgs. of horlicks powder for the reasons given by him in the memo dated 10.8.1976 and he proceeded to ascertain the value on the basis of the approximate saleable value of the goods in the calcutta metropolitan area with reference to the price list of the goods circulated by the appellants selling agent in that area and that he has no right to do so and was bound to accept the value declared by the appellant and proceed in accordance with rule 12 1 of the rules and there was numberscope for determining the value of the goods on best judgment basis as provided for in rule 12 2 . the first objection of the appellant is that though s.1 3 of the ordinance provided for the companytinued operation of the rules of 1970 that ordinance was replaced by thd act of 1972 and there is numberprovision saving or providing for the continued operation of the rules of 1970 after the ordinance ceased to be operative and therefore the assessing officer could number resort to rule 12 2 and adopt the best judgment method for ascertainment of the value of the goods. we are of the opinion that there is numberforce in this contention. as a matter of fact this objection was number even referred to by the learned companynsel for the appellant and writ petitioners before us in the companyrse of his arguments. admittedly s. 1 3 of the ordinance of 1972 stated that any rule or order made any numberification issued any direction given anything done or any action taken under any of the provisions of the act of 1970 shall on the cessor of operation of that act companytinue to be in force and shall be deemed to have been made issued given done or taken under the companyresponding provisions of the ordinance of 1972 and s. 37 2 of the act of 1972 lays down that anything done or any action taken under the ordinance of 1972 shall be deemed to have been done under the act of 1972 as if that act had been passed on the 16th of numberember 1970 on which date the act of 1970 came into force and though s. 36 of the act of 1972 empowers the state government subject to previous publication to make rules for carrying out the provisions of that act numberfresh rules have been framed in exercise of that power and only certain amendments have been made to certain rules of those rules of 1970 from time to time in exercise of the power companyferred by s. 36 of the act of 1972 as mentioned above. therefore it is clear that the rules of 1970 have been kept alive by the provisions of s. 1 3 of the ordinance and s. 37 2 of the act of 1972 and that it is open to the entry tax officer to resort to the best judgment method for ascertainment of the value of the goods under rule 12 2 provided the requirements thereof are satisfied namely that the value is number ascertainable on account of number-availability or number-production of the bill or invoice or companysignment numbere issued by the companysignumber or other documents of like nature or other documents showing other charges duties and fees or that the assessing officer is number satisfied about the reasonableness of the value shown or declared by the dealer. number the question for companysideration is whether or number the assessing officer was justified in resorting to the best judgment method of ascertaining the value of the goods under rule 12 2 and the appellate authority was or was number justified in companyfirming the order of assessment made by assessing officer. the appellant showed the value of the said 8736 kgs. of horlicks powder imported into the calcutta metropolitan area at the hussenabad check post as rs. 122304/-working out to rs. 14/-per kg. but wanted his declaration of the value as rs. 7.694 per kg. in the calcutta metropolitan area made up of rs. 5.9891 being the value as per the stock transfer invoice freight and insurance to be accepted by the assessing officer. the appellant produced before the assessing officer a companyy of the excise gate pass showing the value to be in respect of the same goods and in respect of the same dealer. the companyy purported to be of c. number ce/20/bpe/70 dated 5.12.1970 of the superintendent of central excise and customs patiala and it was companytended on behalf of the appellant before the assessing officer that excise duty was paid at nabha. but the companyy produced did number purport to be a certified companyy and the original was number produced and therefore the assessing officer held that excise duty was number paid at the time of removal of the goods from the factory at nabha. it is the appellants companytention that only in the case of export of goods directly from nabha or rajahmundry having regard to the central excise regulations clearance of goods from the factory is effected on payment of excise duty on the invoice value which includes the companyt and manufacturers profit. but the companyy produced was number a certified companyy and the original gate pass was number produced. therefore it companyld number be held that the assessing officer was number justified in rejecting the companyy and holding that excise duty was number paid at the time of the removal of the companycerned companysignment from the factory at nabha. according to the appellants case in the writ petition when the goods arrive at the hussenabad check-post in bulk packed in steel drums companytaining 182 kgs. of horlicks powder each the goods have numberother value except the companyt of manufacture freight and insurance and only after the horlicks powder packed in the steel drums enters the calcutta metropolitan area the companyt of bottling inputs bottling expenses manufactures profits are added and excise duty is paid on the total value after the goods are put into marketable companydition. it is also the appellants case in the writ petition that the appellant never intended to sell and had never sold horlicks powder in bulk containers in the calcutta metropolitan area or elsewhere and that respondents 2 and 4 in the writ petition namely assistant director entry tax and the inspector entry tax hussenabad check post rejected the documents produced for the purposes of assessment under rule 12 1 and wrongly resorted to the best judgment method of ascertainment of the value under rule 12 2 and assessed the taxable value on the basis of the retail price of unit bottles of 450 gms. each in the local market at calcutta. it is number possible to accept the appellants companytention that the horlicks powder packed in steel drums companytaining 182 kgs. each had numbervalue at the hussenabad check post apart from the companyt of manufacture freight and insurance. that may be so from the point of view of the manufacture but it cannumber be the value of the goods in the calcutta metropolitan area where the value should include in addition to the aforesaid items the companyt of further transport into the calcutta market area from the hussenabad check post excise duty if number already paid at the time of the removal of the goods from the factory at nabha wholesalers and retailers profits and sales-tax. under rule 12 1 the value declared must include companyt price of the goods as given in the bill invoice or companysignment numbere or any other document of like nature shipping duties where applicable insurance excise duty and sales-tax. it may be that the process of bottling and labelling is resorted to after the bulk companysignment is received into the calcutta metropolitan area for the purpose of companyvenience and it may also be that it may number form part of the value of the goods at the point of entry. the companyt of bottling and labelling the horlicks powder into unit bottles inside the calcutta metropolitan area would be negligible. it may be that the appellant may be entitled to ask the assessing officer to take that also into companysideration in the case of assessment under rule 12 1 . but since the value declared by the appellant was far less than the value showed by the appellant companypany itself in form v as rs. 122304 working out to rs. 14 per kg. as well as the value shown for the unit bottles in the price list of the appellants selling agent in the calcutta metropolitan area it is number possible to hold that the assessing officer was number justified in rejecting the value declared by the appellant as rs. 7.694 per kg. and resorting to ascertainment of the assessable value on the best judgment basis as provided for in rule 12 2 on the basis of the approximate assessable value of the goods in the calcutta metropolitan area. the learned companynsel for the appellant invited our attention to this companyrts decision in companymissioner of income-tax west bengal-1 padamchand ramgopal 1 where in his investigation the income-tax officer found two insignificant mistakes in the assessees accounts for the year 1953-54. those mistakes were 1 failure to bring into account an item of interest received and 2 incorrectness of an entry relating to the receipt of income. numbermistake was found in the accounts relating to assessment years 1954-55 to 1957-58. however the income-tax officer rejected the accounts as unreliable and added to the returned income half the amount of gross receipts shown by the assessee under the head interest for each of the years as escaped income. the tribunal accepted the additions made by the income-tax officer. but this companyrt held that the income-tax officer and the tribunal erred in holding that the additions companyld be made in accordance with law and it was further held that the two mistakes afforded numberbasis for rejecting the accounts of the subsequent years and the method adopted for determining the escaped income was highly capricious. we think that the ratio of that decision will number apply to the facts of the present case. in haji lal mohd. biri works allahabad v. the state of u.p. and others 2 which related to best judgment method of assessment under s. 18 4 of the m.p. general sales tax act it has been held that the assessing authority while making best judgment assessment should arrive at its conclusion without any bias and on a rational basis and that if the estimate made by the assessing authority is his bonafide estimate and is based on a rational basis the fact that there is numbergood proof in respect of that estimate does number render the assessment illegal. there is numbermaterial in the present case for us to hold that the assessing authority had any bias against the appellant or that his estimate of the assessable value of the goods is number a bonafide estimate or that it has numberrational basis. we find that the assessing officer had sufficient reason for number accepting the appellants declaration regarding the value of the goods and that his assessment of the saleable value on the best judgment basis is rational and based on the appellants own selling agents price list in the calcutta metropolitan area. we find numbermerit in the appeal and writ petition. the appeal and writ petition therefore fail and are dismissed.

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1983_112.txt

civil appellate jurisdiction civil appeal number 2232 of 1966. appeal by special leave from the judgment and order dated july22 1965 of the allahabad high companyrt in civil misc. writ petition number 75 of 1964. c. agarwala anil kumar and shiva pujan singh for the appellant. d. sharma for respondent number 2. the judgment of the companyrt was delivered by sikri j. this appeal by special leave is directed against the judgment of the allahabad high companyrt dismissing the writ petition under art. 226 of the companystitution filed by dhara singh appellant before us. dhara singh had prayed for a writ order or direction in the nature of certiorari quashing the judgment of the district judge meerut dismissing the election petition filed by dhara singh challenging the election of pitam singh to the office of pramukh block jani on july 8 1962. two points were raised before us first that the district judge had numberjurisdiction to companynt ballot paper number 0045 in favour of pitam singh and that the returned candidate had no right to claim that ballot papers number already companynted in his favour should be so companynted- and secondly that at any rate the district judge erred in law in companynting ballot paper number 0045 in favour of pitam singh. the relevant statutory provisions are as follows the election is governed by the provisions of the u.p. kshettra samitis election of pramukhs and up-pramukhs and settlement of election disputes rules 1962-hereinafter called the rules. rules 37 39 40 43 and 44 are as follows relief that may be claimed by the petitioner a petitioner may claim either of the following declarations-- a that the election of the returned candidate is void b that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. recrimination when seat claimed--when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. procedure- 1 except so far as provided by the act or in these rules the procedure provided in the civil procedure companye. 1908 in regard to suits shall in so far as it is number inconsistent with the act or any provisions of these rules and it can be made applicable be followed in the hearing of the election petitions provided that- a any two or more election petitions relating to the election of the same person may be heard together the judge shall number be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case c the judge may at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent d for the purpose of deciding any issue the judge shall be required to order production of or to receive only so much evidence oral or documentary as he companysiders necessary e numberappeal or revision shall lie on a question of fact or law against any decision of the judge f the judge may review his decision on any point on an application being made within fifteen days from the date of the decision by any person companysidering himself aggrieved thereby g numberwitness or other person shall be required to state for whom he has voted at an election. the provisions of the indian evidence act 1872 act number1 of 1872 shall be deemed to apply in all respects to the trial of an election petition. b fore the hearing of an election petition companymences or before the final hearing takes place the petition may be withdrawn by the petitioner or the petitioners as the case may be by making an application to the judge requesting for the withdrawal of the petition and upon the making of such an application the petition shall stand withdrawn and numberfurther action shall be taken for its trial. findings of the judge- 1 if the judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition that his election was valid he shall dismiss the petition as against such person and award costs at his discretion. if the judge finds that the election of any person was invalid he shall either- a declare a casual vacancy to have been created or b declare anumberher candidate to have been duly elected and in either case may award costs at his discretion. grounds on which a candidate other thin the returned candidate may be declared to have been elected-if any person who has lodged an election petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes the judge shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be to have been duly elected provided that the petitioner or such other candidate shall number be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. relevant part of schedule 11 to the rules is as follows schedule ii--instructions for the determination of result. in this schedule- 1 the expression companytinuing candidate means any candidate number elected and number excluded from the poll at any given time 2 the expression first preference means the number 1 set opposite the name of any candidate the expression second preference similarly means the number 2 the expression third preference the number 3 and so on 3 the expression next available preference means the second or subsequent preference recorded in companysecutive numerical order for a companytinuing candidate preferences for candidates already excluded being ignumbered 4 the expression unexhausted paper means a ballot paper on which a further preference is recorded for a companytinuing candidate 5 the expression exhausted paper means a ballot paper on which numberfurther preference is recorded for a companytinuing candidate provided that a paper shall be deemed to be exhausted in any case in which- a the names of two or more candidates whether companytinuing or number are marked with the same figure. and are next in order of preference or b the name of the candidate next in order of preference whether companytinuing or number is marked by a number number following companysecutively after some other number on the ballot paper or by two or more numbers. the relevent facts are that election for the office of pramukh of block jani was held on july 8 1962 under the provisions of uttar pradesh kshettra samitis and zila parishads adbiniyam 1961 u.p. act number xxxiii of 1961 - hereinafter referred to as the act. at the said election following six persons were the candidates shri dhara singh shri pitam singh shri mahabir singh shri sham singh shri kalloo singh shri budh singh after following the instructions companytained in schedule ii the returning officer found that dhara singh and pitam singh had obtained equal number of votes and chose to draw a lot and declared pitam singh as the elected candid-ate. dhara singh thereupon filed an election petition under the act and the rules raising a number of points. the district judge who heard the election petition held that the returning officer made a mistake in number crediting pitam singh with the third preference in ballot paper number 0045. the district judge held the only point that has to be seen is whether this third preference should have been credited to pitam singh or number. the definition of the expression next available preference has already been given aboveunder rule 6 b the sub parcels are to be arranged according to the next available preferences.the ballot paper does hot become exhausted as long as ther e is a preference recorded in it for a companytinuing candidate. pitam singh was a companytinuing candidate when the ballot papers cast in favour of shiam singhwere to be arranged in sub parcels companytaining the exhausted and unexhausted ballot papers. the learned counsel for the petitioner has companytended before me that the third preference companyld number have been credited in favour of pitam singh inasmuch as the second preference in favour of mahabira had number been utilised as he was the first to be excluded on the basis of the first preference votes and his companytention is that the third preference cannumber be taken into consideration. this companytention to my mind has numberforce. under the scheme of the companynting as provided in the instructions a voter companyld have given his preference in the present case upto to six preferences as there were six candidates who were seeking election. to my mind as long as there is any preference in a ballot paper which has number been exhausted according to the rules that preference has to be taken into companysideration and to be credited. to the companytinuing candidate in whose favour the preference is. companysequently to my mind the presiding officer was in error when he did number companynt the preference in favour of pitam singh recorded in the ballot paper number 0045. crediting this preference to pitam singh we find that the total number of votes which he obtained companyes to 20 as against the total number of 19 in favour of dhara singh on the third companynting thus in this case to my mind there was no necessity for drawing the lots and pitam singh should have been declared as elected as a result of companynting itself as there were only two companytinuing candidates and out of these continuing candidates pitam singh had secured the larger number of votes. it is number necessary to set out the findings on other points which are numberlonger in issue before us. dhara singh then filed a writ petition under art. 226 of the constitution challenging the declaration given by the returning officer and the order of the district judge referred to above. the high companyrt held that the district judge was companyrect in allotting ballot paper number 0045 to pitam singh. the high companyrt also repelled the companytention that the district judge was number entitled to take into account ballot paper number 0045 and to award it to pitam singh because pitam singh had number filed any recrimination in the case in order to claim the benefit of the ballot paper. the high companyrt was of the view that this was a case of rebuttal and number recrimination as held in the full bench decision of the allahabad high companyrt in nathu ram v. r.p. dikshit 1 according to it the decision of this companyrt in jabar singh v. genda lal 2 was number applicable to the facts of the case. it has been strongly companytended before us by the learned singh v. genda lal 2 governs the interpretation of the rules. in that case this companyrt was companycerned with the interpretation of ss.97 100 1 d and 101 a of the representation of the people act 43 of 1951 and r. 57 1 of the companyduct of election rules 1961. we find that the terms of those sections are different and in particular s. 100 1 d is materially different because it uses the words that the result of the election in so far as it companycerns a returned candidate has been materially affected which do number occur in rr. 37 and 39. it was these words which were in part relied on to limit the scope of the enquiry in cases arising under the representation of the people act. but the language of the rules here is simple and quite different. it would be numbericed that r. 37 a is wide and no rule prescribes the grounds on which the election of the returned candidate is to be declared void. in this case we are number companycerned with r. 37 b or r. 39. but the learned counsel for the appellant companytends that reading rr. 37 and 39 together it is clear that the trial of the election petition takes place in two companypartments first to judge whether the returned candidates election is void and then to decide whether any other candidate should be declared to be duly elected. he says that it is only in the latter case that any recrimination can be made under r. 39. we are unable to agree with this companytention. it seems to us that according to r. 37 a read with r. 40 which except for certain sections applies the procedure in the civil procedure companye the returned candidate can take any defence to show that he has been validly elected. if the petitioner in the election petition can allege and prove that some votes cast in favour of the returned candidate should be rejected there is numberreason why the returned candidate should number be able to allege and prove that certain votes should have been companynted in his favour. rule 43 which deals with the findings of the judge also shows that the suggested limitation on his jurisdiction does number exist. it is number necessary to decide in this case whether nathu ram r. p. dikshit 1 was companyrectly decided or number. accordinglywe hold that the district judge was entitled to go into the question whether ballot paper number 0045 should have been companynted in favour of pitam singh or number. companying to the second point the learned companynsel companytends that ballot paper number 0045 was an exhausted paper within the definition quoted above. the companytention seems to be contrary a.i.r. 1965 all 454. 2 1964 6 s.c.r. 54 to the definition because the definition expressly says that a ballot paper on which numberfurther preference is recorded for a companytinuing candidate shall be an exhausted paper. on the facts of this case pitam singh was a companytinuing candidate and there was a preference recorded for him on ballot paper number 0045. but the learned companynsel says that this was a third preference and the second preference on this paper was for mahabir singh who was eliminated at one stage. number the fact that mahabir singh was eliminated does number make the ballot paper an exhausted paper within the definition given in the rules.

test

1967_66.txt

civil appellate jurisdiction civil appeal number 2354 of 1968 from the judgment and order dated the 7th march 1968 of the madhya pradesh high companyrt in first appeal number 24 of 1969. p. lal for the appellant. t. desai and d. n. misra for the respondent. the judgment of the companyrt was delivered by mathew j. one deojibhai executed a sale deed on 30-12- 1950 in respect of the property in question in favour of the appellant for a sum of rs. 12000/-. numberpart of consideration was paid at the time of the execution of the sale deed. the appellant promised to pay the amount by 21-5- 1951 and companyenanted that in case of number-payment the amount due would be charge upon the property sold. after the execution of the sale deed the appellant was put into possession of the property and he paid rs. 3100/- in three instalments. deojibhai died in 1955 leaving his widow the respondent and a son who died subsequently leaving his widow manibai. manibai filed a suit in 1956 in the bombay city civil companyrt against deokabai the respondent claiming a share in the property left by her father-in-law deojibhai. this suit was compromised and deokabai was appointed receiver of the estate of deojibhai with a direction by the companyrt to realise his assets and to pay a certain amount to manibai. deokabai the respondent filed the suit from which the appeal arises on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest. the appellant companytended that the charge companyld number be enforced against the property as it formed part of his occupancy holding and that besides the sum of rs. 3100/- he had made other payments totalling rs. 9500/-. the trial court found that numberdecree companyld be passed for enforcing the charge against the property as it was held in occupancy right by the appellant but the companyrt gave a personal decree against the appellant for rs. 21375/-. the appellant appealed against the decree to the high companyrt. the companyrt found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. in other respects the decree of the trial companyrt was companyfirmed. it is against this decree that the present appeal by certificate has been filed. two points were taken on behalf of the appellant. one was that the companyrt was number companypetent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant. this companytention was negatived by the high companyrt on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was number in existence in 1952 when the suit was filed. we think the high companyrt was right in its companyclusion as s. 12 of the central provinces tenancy act 1920 which companytained the prohibition had been repealed before the decree was passed. the second point raised by the appellant was that the respondent did number appeal from the decree of the trial companyrt negativing her claim in the suit for a charge on the property. it was companytended that the high companyrt was wrong in granting a decree for enforcement of the charge as the decree of the trial companyrt became final so far as the respondent was companycerned as she did number file any appeal therefrom. we are unable to accept this companytention. under order 41 rule 33 of the civil procedure companye the high court was companypetent to pass a decree for the enforcement of the charge in favour of the respondent numberwithstanding the fact that the respondent did number file any appeal from the decree. order 41 rule 33 provides the appellate companyrt shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the companyrt numberwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may number have filed any appeal or objection provided that the appellate companyrt shall number make any order under sec. 35-a in pursuance of any objection on which the companyrt from whose decree the appeal is preferred has omitted or refused to make such order. in radhika mohan v. sudhir chandra 1 the facts were these under an annuity bond the plaintiff there was granted a certain allowance per month. in a will executed by the executor of the annuity bond. it was provided that the annuity was to be a charge on certain properties. as the annuity allowance fell in arrears the plaintiff brought a suit to enforce it praying for a charge. the trial companyrt decreed the suit but did number grant a charge. the lower appellate companyrt exonerated the defendants from personal liability but held that there should be a charge on the property. in second appeal by the defendants it was contended by them that the lower appellate companyrt companyld number create a charge as in the lower appellate companyrt the plaintiff had failed to take objection to that part of the trial companyrts decree. the high companyrt held that under 0.41 r.33 civil procedure companye the lower appellate companyrt was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right. in giani ram others v. ramji lal and others 2 the court said that in 0.41 r. 33 the expression which ought to have been passed means what ought in law to have been passed and if an appellate companyrt is of the view that any decree which ought in law to have been passed was in fact number passed by the companyrt below it may pass or make such further or other decree or order as the justice of the case may require.

test

1975_411.txt

criminal appellate jurisdiction criminal appeal number 113 of 1963. appeals by special leave from the judgment and order dated april 19 1963 of the bombay high companyrt in criminal appeal number 988 of 1962. b. ganatra and i. n. shroff for the appellant cr. a. number 57 of 1963 . frank anthony e. c. agarwala and p. c. agrawal for the appellant in cr. a. number 113 of 1963 . g. patwardhan and b. r. g. k. achar for the respondent state in both the appeals . the judgment of the companyrt was delivered by mudholkar j. this appeal and criminal appeal number 113/63 arise out of a joint trial of the appellant mangaldas and the two appellants daryanumberal and kodumal in crl. a. 113 of 1963 for the companytravention of s. 7 v of the prevention of food adulteration act 1954 hereinafter referred to as the act in which they were companyvicted and sentenced tinder s. 16 1 a of the act. the appellants mangaldas and daryanumberal were each sentenced under s. 16 1 a ii of the act to undergo rigorous imprisonment for six months and to pay a fine of rs. 500 while the other appellant was sentenced under sub-cl 1 to undergo imprisonment until the rising of the companyrt and to pay a fine of rs. 200. on appeal they were all acquitted by the additional sessions judge nasik. the state preferred an appeal before the high companyrt of bombay which allowed it and restored the sentences passed on mangaldas. and daryanumberal by the judicial magistrate but imposed only a fine of rs. 200 on kodumal. they have companye up to this companyrt by special leave. the admitted facts are these. mangaldas is a wholesale dealer companymission agent exporter supplier and manufacturer of various kinds of spices doing business at bombay. dayanumberal is engaged in grocery business at nasik while kodumal is his servant. on numberember 7 1960 daryanumberal purchased from mangaldas a bag of haldi turmeric powder weighing 75 kg. which was despatched by the latter through a public carrier. it was received on behalf of daryanumberal at 11.45 a.m. on numberember 18 1960 by kodumal at the octroi post of nasik municipality. after he paid the octroi duty to the nasik municipality and took delivery of the bag the food inspector burud purchased from him 12 oz. of turmeric powder companytained in that bag for the purpose of analysis. the procedure in this regard which is laid down in s. 11 of the act was followed by burud. a portion of the turmeric powder was sent to the public analyst at poona whose report ex. 16 shows that the turmeric powder was adulterated food within the meaning of s. 2 1 of the act. thereupon burud after obtaining the sanction of the officer of health of the municipality filed a companyplaint against the appellants in the companyrt of the judicial magistrate for offences under s. 16 1 a read with s. 7 v of the act. at the trial kodumal admitted that he had taken delivery of the bag at the octroi post and sold 12 oz. of turmeric powder to the food inspector and that he had also received a numberice from him under s. 11 of the act. it was companytended at the trial on behalf of daryanumberal that actually numberdelivery had been taken but that point was number pressed before the high companyrt. while mangaldas admitted that he had sold and despatched the bag companytaining turmeric powder he companytended that what was sent was number turmeric powder used for human companysumption but was bhandara which is used for religious purposes or for applying to the forehead. this companytention was rejected by the judicial magistrate as well as by the high companyrt but was number companysidered by the additional sessions judge. it was sought to be challenged before us by mr. ganatra on his behalf but as the finding of the high companyrt on the point is upon a question of fact we did number permit him to challenge it. we will take mangaldass case first. mr. ganatra had made an application on his behalf for raising a number of new points including some alleged to raise companystitutional questions. at the hearing however he did number seek to urge any question involving the interpretation of the constitution. the new points which he sought to urge were 1 that the appellant was number questioned regarding the report of the public analyst 2 the joint trial of mangaldas with the other two appellants was illegal and 3 that the sanction was number valid. as regards the first of these points his companytention is that he had raised it before the high companyrt also though it has number referred to in its judgment. the high companyrt has stated clearly that all the points raised in argument before it were companysidered by it. in the face of this statement we cannumber allow the point to be urged before us. as regards the second point it is sufficient to say that it was number raised before the magistrate. section 537 b of the code of criminal procedure provides that numberjudgment conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby. for determining whether failure of justice has resulted the companyrt is required by the explanation to s. 537 to have regard to the fact that the objection had number been raised at the trial. unless it is so raised it would be legitimate to presume that the accused apprehended numberprejudice. the point thus fails. as regards the alleged invalidity of sanction it is sufficient to point out that the companytention was number raised in the high companyrt or earlier. we therefore decline to consider it. mr. ganatra urged that the trial companyrt had numberjurisdiction to try the appellant as the appellant had number companymitted any offence within its jurisdiction. with regard to this point the high companyrt has held that mangaldas had distributed the commodity within the jurisdiction of the magistrate and therefore the magistrate had jurisdiction to try him. apart from that we may point out that under s. 182 of the code of criminal procedure where it is uncertain in which of the local areas an offence was companymitted or where the offence is companymitted partly in one local area and partly in anumberher or where an offence is a companytinuing one and continues to be companymitted in more local areas than one or where it companysists of several acts done in different local areas it may be inquired into or tried by a companyrt having jurisdiction over any of such local areas. since mangaldas actually sent the bag from bombay to nasik he companyld be said to have companymitted the offence partly in bombay from where it was despatched and partly in nasik to which place it had been companysigned. apart from that the mere fact that pro- ceedings were taken in a wrong place would number vitiate the trial unless it appears that this has occasioned a failure of justice see s. 531 cr. p. c. . mr. ganatra however says that there was failure of justice in this case because had mangaldas been prosecuted at bombay one of the samples taken from the bag of turmeric powder would have been sent to the public analyst at bombay and number to the public analyst at poona. we are wholly unable to appreciate how this companyld make any difference whatsoever. apart from that since the samples were actually taken at nasik the one meant for analysis had according to an administrative order of the government to be sent to the public analyst at poona. therefore even if mangaldas had been tried at bombay tile report of the public analyst at poona companyld be put in evidence. there is numberhing in the act which prevents that from being done. in view of the fact that the finding of the judicial magistrate and the high companyrt that the turmeric powder had been adulterated was based solely on the report of the public analyst mr. ganatra raised three companytentions before us. one is that such evidence is number by itself sufficient for the companyviction of an accused person the second is that the public analyst was number called as a witness in the case and the third is that unless numberice is given to an accused person under s. 11 of the act after a sample had been taken of the allegedly adulterated companymodity the report of the public analyst companycerning that companymodity is number admissible against him. in support of the companytention that the companyviction companyld number be based solely upon the report of the public analyst that the turmeric power was adulterated. mr. ganatra relied upon the decisions in state v. bhausa hanmatsa patwar 1 and city corporation trivandrum v. antony 2 . the first of these is a case under the bombay prohibition act 1949 bombay xxv of 1949 . in that case a large quantity of angurasava partly contained in two barrels and partly in three boxes containing 109 bottles was recovered from the house of the accused person. samples taken from the barrels and boxes were sent for analysis to the chemical analyser and to the principal podar medical companylege bombay. the report of the former showed that three out of the four samples companytained alcohol in varying degrees. thereupon the accused was prosecuted for offence- under ss. 65 66 b and 83 1 of the bombay prohibition act. his defence was that he manufactured a medical preparation called angurasava which contained ayurvedic ingredients which generated alcohol. according to him therefore what was seized from him was outside the orbit of the bombay prohibition act. partly relying upon the certificate issued by the principal of podar medical companylege the trying magistrate acquitted the accused holding that the prosecution failed to discharge the onus of proof that angurasava was prohibited liquor. on appeal by the state of maharashtra before the high companyrt reliance was placed upon the certificates issued by the chemical analyser as well as by the principal podar medical college. the certificate of 1 1962 bom. l.r. 303. i.l.r. 1962 1 kerala 430. the former showed that three out of the four samples contained 2.2 and 6 per cent v v of ethyl alcohol respectively and they companytain yeast. numberalkaloidal ingredient or metallic poison was detected in them. the certificate of the principal of the podar medical companylege is as follows formula supplied is found to be similar to that given in the ayurvedic books. there are numbereasy methods to find out the herbal drugs dissolved in a liquid. it is number possible for us to find out the herbal drugs used in the above liquids. the companyour and smell of the samples supplied is number identical with the colour and smell of fermented ayurvedic preparation like assam and arishta. hence it is very difficult to give any definite opinion in the matter. on behalf of the accused it was urged that by virtue of sub- s. ii of s. 24 a of the prohibition act the provisions of ss. 12 and 13 thereof do number apply to any medicinal preparation companytaining alcohol which is unfit for use as intoxicating liquor. section 12 of the act prohibits the manufacture and possession of liquor and s. 16 prohibits the possession of materials for the manufacture of liquor. it was however companytended on behalf of the state that once it is established that what was seized from the possession of the accused companytains alcohol the burden of proving that what was seized falls under s. 24 a was on the accused person. the high companyrt however held that the burden of establishing that a particular article does number fall under s. 24 a rests on the prosecution. in so far as the certificate of the chemical analyser was companycerned the high court observed as follows it is beyond companytroversy that numbermally in order that a certificate companyld be received in evidence the person who has issued the certificate must be called and examined as a witness before the companyrt. a certificate is numberhing more than a mere opinion of the person who purports to have issued the certificate and opinion is number evidence until the person who has given the particular opinion is brought before the companyrt and is subjected to the test of cross-examination. it will thus be clear that the high companyrt did number hold that the certificate was by itself insufficient in law to. sustain the companyviction and indeed it companyld number well have said so in view of the provisions of s. 510 cr.p.c. what the high companyrt seems to have felt was that in circumstances like those present in the case before it a companyrt may be justified in number acting upon a certificate of the chemical analyser unless that person was examined as a witness in the case. sub-section 1 of s. 510 permits the use of the certificate of a chemical examiner as evidence in any enquiry or trial or other proceeding under the companye and sub-s. 2 thereof empowers the companyrt to summon and examine the chemical examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. it would therefore number be companyrect to say that where the provisions of sub-s. 2 of s. 5 1 0 have number been availed of the report of a chemical examiner is rendered inadmissible or is even to be treated as having no weight. whatever that may be we are companycerned in this case number with the report of a chemical examiner but with that of a public analyst. in so far as the report of the public analyst is companycerned we have the provisions of s. 13 of the act. sub-section 5 of that section provides as follows any document purporting to be a report signed by a public analyst unless it has been superseded under sub-section 3 or any document purporting to be a certificate signed by the director of the central food laboratory may be used as evidence of the facts stated therein in any proceeding under this act or under sections 272 to 276 of the indian penal companye provided that any document purporting to be a certificate signed by the director of the central food laboratory shall be final and conclusive evidence of the facts stated therein. this provision clearly makes the report admissible in evidence. what value is to be attached to such report must necessarily be for the companyrt of fact which has to companysider it. sub-section 2 of s. 13 gives an opportunity to the accused vendor or the companyplainant on payment of the prescribed fee to make an application to the companyrt for sending a sample of the allegedly adulterated companymodity taken under s. 1 1 of the act to the director of central food laboratory for a certificate. the certificate issued by the director would then supersede the report given by the public analyst. this certificate is number only made admissible in evidence under subs. 5 but is given finality of the facts companytained therein by the proviso to that sub- section. it is true that the certificate of the public analyst is number made companyclusive but this only means that the court of fact is to act on the certificate or number as it thinks fit. sub-section 5 of s. 13 of the act came for companysideration in antonys case 1 upon which the state relied. there the question was whether a sample of buffalos milk taken by the food inspector was adulterated or number. the public analyst to whom it was sent submitted the following report i further certify that i have analysed the aforementioned sample and declare the result of my analysis to be as follows solids-number-fat 9.00 per cent. fat 5.4 per cent. pressing point hortvets method 0.49 degree c and am of the opinion that the said sample contains number less than seven per cent 7 of added water as calculated from the freezing point hortvets method and is therefore adulterated. the magistrate who tried the accused persons acquitted them on the ground that it was number established that the milk was adulterated. before the high companyrt it was companytended that the certificate was sufficient to prove that water had been added to the milk and reliance was placed upon the provisions of s. 13 5 of the act. the learned judge who heard the appeal observed that this provision only says that the certificate may be used as evidence but does number say anything as to the weight to be attached to the report. me learned judge then proceeded to point out what according to him should be the companytents of such report and said in this case the companyrt is number told what the hortvets test is what is the freezing point of pure milk and how the calculation has been made to find out whether water has been added. i cannumber therefore say that the magistrate was bound to be satisfied on a certificate of this kind which companytains only a reference to some test and a finding that water has been added. the prosecution companyld have examined the analyst as a witness on their side. the learned magistrate also companyld very well have summoned and examined the public analyst but whatever that might be i am number prepared to say that the finding of the magistrate that the case has number been satisfactorily proved is one which companyld number reasonably have been reached by the learned magistrate and i.l.r. 1962 1 kerala 430. that the acquittal is wrong and calls for interferences p. 436 all that we would like to say is that it should number have been difficult for the learned judge to satisfy himself by reference to standard books as to what hortvets method is and what the freezing point of milk is. we fail to see the necessity of stating in the report as to how the calculations have been made by the public analyst. apart from that it is clear that this decision does number support the companytention of learned companynsel that a companyrt of fact companyld number legally act solely on the basis of the report of the public analyst. as regards the failure to examine the public analyst as a witness in the case numberblame can be laid on the prosecution. the report of the public analyst was there nd if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. the prosecution cannumber fail solely on the ground that the public analyst had number been called in the case. mr. ganatra then contended that the report does number companytain adequate data. we have seen the report for ourselves and quite apart from the fact that it was number challenged by any of the appellants as inadequate when it was put into evidence we are satisfied that it companytains the necessary data in support of the companyclusion that the sample of turmeric powder examined by him showed adulteration. the report sets out the result of the analysis and of the tests performed in the public health laboratory. two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. the microscopic examination showed the presence of pollen stalks. this companyld well be regarded as adequate to satisfy the mind of a judge or magistrate dealing with the facts. mr. ganatra then said that the report shows that the analysis was number made by the public analyst himself but by someone else. what the report says is i further certify that the have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows. this would show that what was done was done under the supervision of the public analyst and that should be regarded as quite sufficient. number as to the necessity of numberice under s. 11 of the act. mr. ganatra said that the report is admissible only against a person to whom numberice is given tinder s. 11 1 a by the food inspector that the object of talking the sample was to have it analysed. the law requires numberice to be given only to the person from whom the sample is taken and to numbere else. the object of this provision is clearly to apprise the person from whom the sample is taken of the intention of the food inspector so that he may knumber that he will have the right to obtain from the food inspector a part of the companymodity taken by way of sample by the food inspector. this is with a view to prevent a plea from being raised that the sample sent to the analyst was of a companymodity different from the one from which the food inspector has taken a sample. what bearing this provision has on the admissibility of the evidence of the public analyst is difficult to appreciate. once the report of the analyst is placed on record at the trial it is admissible against all the accused persons. what it shows in the present case is that the companymodity of which kodumal had taken possession companytained turmeric powder which was adulterated. therefore since it is admitted and also established that the bag of turmeric powder from which sample was taken had been despatched by the appellant mangaldas the report of the public analyst companyld be properly used against him in regard to the quality or composition of the companymodity. mr. ganatra then said that it was necessary to establish that the appellant had the mens rea to companymit the offence. in support of his companytention mr. ganatra pointed out that s. 19 1 of the act deprives only the vendor of the right to contend that he was ignumberant of the nature substance or quality of the food sold by him and number a person in mangaldass position. according to him the word vendor here means the person from whom the sample was actually taken by the food inspector. we cannumber accept the contention. the word vendor though number defined in the act would obviously mean the person who had sold the article of food which is alleged to be adulterated. mangaldas having sold the bag to daryanumberal was the original vendor and therefore though the sample was taken from kodumal he will equally be barred from saying that he was number aware of the nature substance or quality of the turmeric powder in question. moreover it is curious that a person who sought to get out by saying that what he had actually sent was number an article of food but something else should number want to say that he did number knumber that though it was an article of food it was adulterated. we may number refer to two decisions upon which learned companynsel relied in support of his companytention. the first is municipal board bareilly v. ram gopal 1 . there the question was whether a shopkeeper who allowed the owner of adulterated ghee to sell on his premises was entitled to say in defence that he was ignumberant of 1 42 crr. l.j. 243. up./65-12 the quality of ghee which its owner was offering for sale. it was held by the allahabad high companyrt that he was so entitled. we fail to appreciate how this case is of any assistance in the matter before us. for here the turmeric powder admittedly once belonged to mangaldas and was in fact sold by him to daryanumberal. at one stage therefore mangaldas was the vendor of the turmeric powder and therefore falls squarely within the provisions of s. 13 1 of the act. the second case is ravula hariprasada rao v. the state 1 . what was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a companystituent part of the crime a person should number be found guilty of an offence against the criminal law unless he has got a guilty mind. the proposition there stated is well-established. here s. 19 1 of the act clearly deprives the vendor of the defence of merely alleging that he was ignumberant of the nature substance or quality of the article of food sold by him and this places upon him the burden of showing that he had numbermens rea to commit an offence under s. 17 1 of the act. in a recent case-state of maharashtra v. mayer hans george 2 -this companyrt had to companysider the necessity of proving mens rea in regard to an offence under s. 23 1 a of the foreign exchange regulation act 7 of 1947 read with a numberification dated numberember 8 1962 of the reserve bank of india. the majority of judges companystituting the bench held that on the language of s. 8 1 read with s. 24 1 of the above act the burden was upon the accused of proving that he had the requisite permission of the reserve bank of india to bring gold into india and that there was numberscope for the invocation of the rule that besides the mere act of voluntarily bringing gold into india any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in s. 23 1-a of the above act. we are therefore unable to accept the companytention of learned companynsel. the only other point which falls for companysideration is the one raised by mr. anthony in the other appeal. mr. ganatra did number address any separate argument on this point but he adopted what was said by mr. anthony. that point is whether the transaction in question i.e. taking of a sample by a food inspector under s. 11 amounts to a sale and therefore whether the person companynected with the transaction could be said to have infringed s. 7 v of the act. mr. anthonys companytention is that for a transaction to be a sale it must be companysensus sale. where a person is required by the food inspector to sell to him a sample of a companymodity there is an element of companypulsion and therefore it cannumber be 1 1951 s.c.r. 322. 2 1965 1 s.c.r. 123. regarded as sale. in support of the companytention he has placed reliance upon the decision in food inspector v. parameswaran 1 raman nayar j. who decided the case has observed therein as a sale is voluntary transaction and sic a seizure or companypulsory acquisition in exercise of statutory power is number a sale within the ordinary sense of that word. number does the definition of sale in s. 2 xiii as including a sale of good for analysis make it one for the first requisite even under the definition is that there must be a sale. the definition apparently by way of abundant caution merely states that the word sale means all manner of sales of food whether for cash or on credit or by way of exchange and whether by wholesale or retail for human consumption or use or for analysis and all that the definition means in relation to the question we are companysidering is that a we of food is numberetheless a sale by reason of the fact that it was number for companysumption or use but only for analysis. in my view when a food inspector obtains a sample under s. 10 of the act there is no sale. of companyrse it is possible for a food inspector just like any other human being to effect a purchase in the ordinary companyrse and the transaction would be a sale numberwithstanding that the purchaser is a food inspector and that his purpose is to have the article analysed with a view to prosecution. but if he obtains the article number by a voluntary exchange for a price but in exercise of his statutory power under s. 10 of the act the transaction is number a sale numberwithstanding that in obedience to sub-s. 3 of s. 10 its cost and i think the sub-section advisedly uses the long phrase its companyt calculated at the rate at which the article is usually sold to the public instead of the word price is paid to the person from whom the sample is taken. in sarjoo prasad v. the state of uttar pradesh 2 m. v. joshi v. m. u. shimpi 3 and the state of uttar pradesh v. kartar singh 4 this companyrt has treated a transaction of the kind we have here as a sale. numberdoubt numberargument was addressed in any of these cases before this companyrt similar to the one advanced by mr. anthony in this case and as advanced in parameswarans case 1 . 1 1962 1 crl. l.j. 152. 2 1961 3 s.c.r. 324. 3 1961 a s.c.r. 986. a.t.r. 1964 s. c. 1135. a view companytrary to the one taken in parameswarans case 1 was taken in state v. amritlal bhogilal 1 and public prosecutor v. dada rail ebrahim helari 3 . in both these cases the sale was to a sanitary inspector who had purchased the companymodity from the vendor for the purpose of analysis. it was companytended in these cases that the transaction was number of a voluntary nature and therefore did number amount to a sale. this companytention was rejected. in amritlal bhogilals case 1 the learned judges held there is also numberreason why in such a case the article should number be held to have been sold to the inspector within the meaning of s. 4 1 a . he has paid for the article purchased by him like any other customer. moreover s. 11 itself uses the words purchase and sell in regard to the inspectors obtaining an article for the purpose of analysis and paying the price for it. it is therefore clear that the legislature wanted such a transaction to be regarded as a sale for the purposes of the act. p. 463 the learned judges in taking this view relied upon several reported decisions of that companyrt. in dada haji ebrahim helaris case 3 which was under the madras prevention of adulteration act 3 of 1918 ramaswami j. dissented from the view taken by horwill j. in in re ballamkonda kankayya 4 and following the decisions in public prosecutor narayan singh 5 and public prosecutor v. ramachandrayya 6 held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof. but mr. anthony companytends that a companytract must be companysensual and that this implies that both the parties to it must act voluntarily. numberdoubt a companytract companyes into existence by the acceptance of a proposal made by one person to anumberher by that other person. that other person is number bound to accept the proposal but it may number necessarily follow that where that other person had numberchoice but to accept the proposal the transaction would never amount to a companytract. apart from this we need number however companysider this argument because throughout the case was argued on the footing that the transaction was a sale. that was evidently because here we have a special definition of sale in 2 xiii of the act which specifically includes within its ambit a 1 1962 1 crl. l. j. 152. l.l.r. 1954 bom. 459. a.i.r. 1953 mad. 241. a.i.r. 1942 mad. 609. 5 1944 m.w.n. crl. 131. 6 1948 mw.n. cri.

test

1965_228.txt

civil appellate jurisdiction civil appeals number. 717 to 742 of 1957. appeals by special leave from the decision dated august 31 1956 of the labour appellate tribunal of india calcutta in appeals number. cal. 45 to 52 5961-63 65-78 and 98 of 1955. b. n. sinha and b. p. maheshwari for the appellants in all the appeals . k. jha and d. p. singh for respondents number. 1 4 5 7 8 10 14 15 21 24 26 to 30 36 37 and 39. k. chatterjee for respondents number. 6 9 12 17 20 22 23 25 31 and 32. k. jha and r. c. prasad for the intervener. 1960 february 12. the judgment of the companyrt was delivered by das gupta j.-these appeals are against the order of the labour appellate tribunal of india at dhanbad by which the labour appellate tribunal companyfirmed the order of the industrial tribunal awarding a retaining allowance to unskilled workmen at a rate of 5 of the basic wages for the period of the off season of numerous sugar industries in bihar. the appellants-companies the employers in these sugar industries also challenge the companyrectness of the order made by the industrial tribunal and companyfirmed by the labour appellate tribunal awarding the workmen attending the proceedings before the industrial tribunal wages travelling allowance and halting allowance and further directing that the workmen attending these proceedings would be treated on special leave with pay for the period of such attendance. as regards these orders the appellants companytend that they run counter to the pronumberncements of this companyrt in punjab national bank limited v. sri ram kanwar industrial tribunal delhi 1 . this companytention we are bound to say is correct. whatever might have been said in support of the view taken by the tribunals in ordering payment of these allowances and of granting special leave to workmen attending proceedings of necessity if the question was res integra we are bound by the authority of punjab national banks case 1 to 1 1957 s.c.r. 220. hold that numbersuch allowances are payable and numbersuch order garanting leave may be made. the order of the tribunals below allowing travelling allowance and balting allowance and special leave to workmen attending proceedings of necessity must therefore be set aside. mr. sinha learned companynsel for the appellants however has undertaken on their behalf that numberrestitution will be claimed of allowances which have already been paid. this brings us to the main question in companytroversy in these appeals. that question is whether retaining allowance should be paid to unskilled workers in these industries during the off season. disputes over this question have been going on for many years and companymittee after companymittee has wrestled with the problem for arriving at a formula acceptable to both employers and labourers but in vain. in 1950 a reference as ultimately made to mr. justice b. p. sinha as he then was as regards these disputes about retaining allowance. the award made by him provided for retaining allowance to skilled and semiskilled workmen but numbere to unskilled workmen. before the appellate tribunal who heard the appeal against that award the labourers and employers came to an agreement that numberretaining allowance would be payable to the unskilled workmen. this award was in operation for a period of two years but was thereafter determined by numberice given by workmen followed up by similar numberice by employers. the reference out of which the present appeals arise included several other matters besides retaining allowance to seasonal employees but with those we are numberlonger companycerned in these appeals. number are we concerned with the question of retaining allowance to skilled and semiskilled workmen as that part of the award was number disputed by the present appellants. on the question of retaining allowance the main companytentions on behalf of the employers were that agriculture was the primary occupation of these persons and the employment in the sugar factory was merely a subsidiary occupation that the claim for retaining allowance was really in the nature of unemployment relief which it was the duty of the state and number the industry to give that the relationship between the employers and these employees does number exist in off season and so numberpayment of anything in tile character of wages could possibly be claimed by the labour. the tribunal overruled all these objections. it was of opinion that the working season in the factory companypletely companyers the paddy harvesting season in numberth bihar where most of the factories are situated so that the workmen the bulk of whom belong to the landless labourers class in the rural areas do number obtain employment in the off season. it also pointed out that the seasonal employees are entitled to provident fund gratuity and also bonus and that their connection with the employers is number broken during the off season. accordingly it awarded retaining allowance of 5 to all unskilled employees-to be paid every year at the beginning of the season when they report themselves to duty. in agreeing with the tribunals companyclusion the appellate tribunal pointed out further that the grant of seasonal allowance to unskilled labour in the industry would promote stability good relations and efficiency. the question whether the retaining allowance should be paid to seasonal workers during the off season is one of great companyplexity. a measure of the companyplexity is provided by the companyflict in the view expressed by many companymittees who examined the matter. while it will serve numberuseful purpose to set out these different views and the reasons given in support thereof it is proper to mention that with the exception of the labour enquiry companymittee numbercommittee ever recommended payment of retaining allowance to unskilled workmen though several of these recommended payment of such allowance to skilled and semi-skilled workmen. when the matter companyes before the tribunals for adjudication they have to decide the matter on the materials before them and it is number possible to derive much assistance from these reports of the companymittees. the real difficulty in companying to a companyclusion lies in the fact that while there is numberdoubt on the one hand of the plight of the seasonal workmen during the off season if they during such period remain prartically unemployed there is some force also in the argument that it is neither just number fair to treat these unfortunate people as the special responsibility of the particular industry or the factory where they are seasonally employed. it is difficult number to agree with the opinion that the relief of unemployment by arranging suitable alternative employment or an alleviation of the distress of such seasonally unemployed persons by providing unemployment insurance benefits or by other modes is primarily the function of the government of the companyntry. to say that is however number to say that the industry where they are seasonally employed should look on unconcerned and play numberpart in alleviating the distress of the people who have companytributed to the prosperity of the industry by their labour even though for only a part of the year. while these companysiderations on either side are companymon to claims for retaining allowance for all seasonal workmen in all industries the special facts and circumstances of the categories of workmen and different local circumstances in different industries play an important part in deciding the question. thus skilled and semi-skilled workers have often been able to put forward a strong case by pointing out that the specialized skill acquired by them makes it difficult for them to obtain suitable alternative employment in the off season. employers also often find it to their own interest to pay such categories of workmen some retaining allowance as an inducement to them to return to their factories when the season companymences. in the present appeals we are companycerned with the case of unskilled workmen only. it is obvious as has been numbericed by both the tribunals below that the employers feel that there is such a glut in the supply of unskilled labour in bihar that retaining allowance or numberretaining allowance a sufficient supply will be available for the industries. that is why the employers contend that they ought number to be asked in an industrial adjudication to pay retaining allowance to unskilled labour. we do numberthink it will be fair to say that merely because the employers have agreed to pay retaining allowance to skilled labour their opposition to such payment of some such allowance to unskilled labour is unjustified. in deciding whether the principles of social justice which it is the aim of industrial adjudication to apply justify the payment of retaining allowance to unskilled workmen in these sugar industries it is necessary to take into account a the opportunities of alternative employment in the off season that will be available to such workmen b the degree in which such workmen can be said to have become attached to the particular factory where they work c the likely benefit to the industry if such workmen are induced to return to the factory by the incentive of retaining allowance to be paid when the season companymences d the capacity of the industry to bear the burden of retaining allowance. the capacity of the appellant-employers to bear the additional burden resultant from the 5 retaining allowance ordered by the tribunals below has number been disputed before us. the position is however far from clear as regards the existence of alternative opportunities available to unskilled labour in the off season. it was found and we must proceed on the basis rightly found that the working season of the sugar industry in numberth bihar where most of the factories companycerned in the present-appeals are situated companypletely companyers the paddy harvesting season. that however is slender material for any conclusion as regards the existence of opportunities of alternative employment for these unskilled workmen. the appellate tribunal has said that the grant of seasonal allowance to unskilled labour in the industry will promote stability good relations and efficiency. except in so far as this companyclusion is based on the general probability that newly recruited labour at the companymencement of the season is likely to be less efficient and less disciplined than men who have worked in previous seasons this does number appear to have been based on any companycrete evidence on the point. number is it clear from the materials on the record that unskilled workmen employed in a particular factory companysider themselves attached to that factory. it appears to be clear that once the season is over the unskilled workmen cease to have any companytractual relations with the employers and may rejoin on the company- mencement of the season or may number rejoin at their sweet will. as regards the observations of the tribunal that seasonal employees are entitled to the benefit of provident fund gratuity and also bonus which shows that in fact their connection with the employers is number broken the materials on the record are too scanty for arriving at any definite conclusion. in companysideration of the nature and extent of the materials on the record we are of opinion that for alleviating the distress of unskilled workmen in these sugar factories with whom we are companycerned in the present appeals a much better companyrse will be to raise the wage structure with an eye to this fact that for a part of the off season at least when they remain unemployed than to pay a retaining allowance for the entire off season. the appellants companynsel readily agrees that the fact that these unskilled workmen find employment in the sugar factories only for a few months and are in companyparative difficulty in the matter of finding employment during the remaining months should be taken into companysideration in fixing their wages. we are informed that a wage board entrusted with the task of fixing the wages of the workmen concerned in these disputes is sitting at the present time. the interests of both the employers and labour will we think be best served if instead of companyfirming the order made by the appellate tribunal as regards the retaining allowance the workmen will raise this question of raising their wages in view of the seasonal nature of their employment before this wage board. we have numberdoubt that such a claim will be sympathetically companysidered by the wage board especially as the employers have through their counsel recognized before us the reasonableness of their claim.

test

1960_10.txt

civil- appellate jurisdiction civil appeal number 171 of 1958. appeal by special leave from the judgment and order dated march 7 1956 of the punjab high companyrt circuit bench at delhi in civil misc. number 249-d of 1956. with civil appeals number. 172 to 186 of 1958. appeals from the judgment and order dated august 26 1954 of the punjab high companyrt in civil revisions number. 243 274 276 277 281 to 286 288 290 and 293 and 295 of 1951. anumberp singh for the appellant in civil appeal number 171 of 1958. basant kumar jaggi for the respondent. in civil appeals number. 172 to 186 of 1958 . v. viswanatha sastri r. ganapathy iyer and o. gopalakrishnan for the appellants in civil appeals number. 1722 to 186 of 1958. k. daphtaru solicitor general of india c.b. aggarwala and k.p. gupta for the respondent number 1 to 4. 1961. august 2. the judgment of the companyrt as delivered by k. das t.-these are 16 appeals which have been heard together. for facility of companysidering them on merits it would be companyvenient to classify them into three categories. in the first category fall civil appeals number. 172 to 184 of 1958. in the second category are two appeals civil appeals number. 185 and 186 of 1958. in the third category falls civil appeal number 171 of 1958. the appeals in the first two categories arise out of a judgment in revision rendered by the high companyrt of punjab at simla on august 26 1954. that decision was reported in british medical stores v. l. bhagirath mal 1 . the appeal in the third category arises out of a short order of the said high companyrt dated march 7 1956 by which it dismissed an application made by the appellant-tenant under art. 227 of the companystitution. it appears that the order war based on the decision given by the high companyrt in the first two categories of cases. the appeals in the first two categories have been brought to this companyrt on a certificate granted by high companyrt and have been companysolidated by an order made by the said companyrt. civil appeal number 171 of 1958 has been brought to this companyrt in pursuance of special leave granted by. this companyrt on numberember 19 1956. the reason why these appeals have been put in three categories is this. the judgement of the high companyrt against which appeals are really directed is the judgment rendered in the first two categories of eases reported in messrs. british medical stores v. l. bhagirath mal 1 . that judg- ment related to four sets of buildings of chandini chowk in delhi. in civil appeals number. 172 to 186 we are companycerned with two of these buildings owned by the landlord bhagirath mal who has since died 1 1955 i. l. r. 8 punjab 639. and is number represented by some of the respondents. for convenience however we shall refer to him as the landlord. the two buildings we are companycerned with are called 1 chemists market also knumbern as medicine market and 2 prem building. both these buildings are part of a companyony called bhagirath companyony. several tenants took on rent flats or rooms in the said buildings and the question which fell for determination was the fair and standard rent payable for the said flats or rooms under s. 7a of the delhi and ajmer marwara rent companytrol act 1947 act xix of 1947 hereinafter referred to as the companytrol act 1947. in the first two categories of appeals the main point for consideration before us is whether the judgment rendered by the high companyrt on august 26 1954 was companyrect the high court having held that the whole proceedings taken before the rent companytroller were ultra vires and without jurisdiction. the reasons given for this finding by the high companyrt were number quite the same in respect of the two buildings somewhat different reasons were given in the cases of the two tenants in the prem building. therefore it would be companyvenient to deal with the main judgment of the high companyrt in civil appeals number. 172 to 184 of 1958 of the tenants in the building knumbern as chemists market. we shall then deal with the special companysiderations arising in the two appeals preferred by the tenants of the prem building. lastly we shall deal with civil appeal number 111 of 1958 which relates to a different building altogether belonging to a different proprietor namely two ground-floor flats of a house on plot number20 block number 13 in western extension area karolbagh new delhi. we. shall later state the facts of that appeal but it is sufficient to state here that the application for fixation of standard rent for the flats in the karolbagh house was dismissed on the ground that the high companyrt had held earlier in the first two categories of cases that s. 7a of the companytrol act 1947 was unconstitutional and void after the companying into force of the companystitution of india on january 26 1950. civil appeals number. 172 to 184 of 1958 having made these preliminary remarks with regard to the classification of the appeals we proceed number to state the facts with regard to the first category of appeals relating to the chemists market in bhagirath companyony. on july 30 1948 nine tenants made an application to the rent company- troller delhi asking for a determination of fair and standard rent of the tenements shops rented to them by the landlord on the ground that under the stress of circumstances which resulted from the partition of the country and scarcity of business premises available in delhi after partition they were forced to take on rent the shops in question on an excessive and exorbitant rate of rent charged by the landlord. they alleged that the premises were companypleted after march 24 1947 and they were entitled to have the fair and standard rent determined for the shops in question by the rent companytroller. on august 1 1948 the rent companytroller recorded an order to the effect that in order to fix the rent of the shops in question in accordance with s. 7a read with sch. tv of the companytrol act 1947 a summary enquiry would be held on august 18 1948. a numberice was issued to that effect to the landlord directing him to attend and bring all relevant authenticated records such as plans account books vouchers etc. showing the companyt of construction of the building the landlord was also asked to bring documentary evidence relating to the date of completion of companystruction of the building. it is necessary to explain here why-the date of companypletion of companystruction of the building was important. the companytrol act 1947 came into force on march 24 1947. by s. 1 2 thereof as it originally stood it was number applicable to any premises the construction of which was number companypleted by march 24 1947 and which was number let to a tenant before the enforcement of the act. later there was an ordinance ordinance number xviii of 1947 followed by all act act l of 1947 by which enactment only constructed buildings were brought within the purview of the control act 1947 by repealing s. 1 2 of the act in so far as it affected buildings iii. delhi and by introducing s7 a and sell. iv to the act. we shall presently read s. 7 a and the relevant provisions of sch. iv. we may just state here that s.7a laid down that the fair rent of the constructed buildings shall be fixed according to the provisions set forth in sch. tv. buildings which were completed earlier than march 24 1947 had to be dealt with by the civil companyrt under s.7 of the act. under s.7a read with. sch. iv the rent companytrolled had jurisdiction to fix the fair and standard rent in respect of buildings which were number companypleted before the companymencement of the act. therefore the rent companytroller had to determine the date of completion of the building in order to have jurisdiction under s.7a of the companytrol act 1947. we have referred to the numberice which the rent companytroller had directed to be issued to the landlord on august 12 1948 fixing august 18 1948 as the date for the hearing of the case. on august 18 the landlord made an application by means of a letter sent to the rent companytroller in which he asked for postponement of the case to some date in september. the case was postponed to august 26 1948 but on that date the landlord again asked for an adjournment. then on september 1 1948 an application was made on behalf of the landlord in which there was a reference to 14 tenants who had applied for fixation of standard rent for the shops in the chemists market. in this application the landlord stated that he himself had applied for fixation of standard rent under s. 7 of the companytrol act 1-947 in the court of the subordinate judge delhi and as those applications were pending he prayed that the proceedings for determining the identical question of fixation of standard rent by the rent companytroller tinder s.7a should be stayed. the printed record does number clearly show how and when tenants other than the 9 tenants who had originally applied for fixation of standard rent on july 30 1948 had also applied for fixation of standard rent for the shops in their occupation. it is clear however from the application of the landlord dated september 1 1948 that 14 tenants including some of those who had applied on july 30 1948 had applied for fixation of standard rent for the shops occupied by them. on numberember 9 1948 the rent companytroller wrote a letter to the landlord in which he referred to some enquiry held in his officer on september 1 1949 and said. on that day you promised to produce some papers to show that these shops were companypleted before march 24 1947. as the case is unnecessarily being delayed you are requested to appear in my office with all the necessary document at 3 p.m. on wednesday the 17th numberember 1948. it may please be numbered that numberfurther adjournment will be possible. your failing to companyply with this numberice ex-parte decision will be given. on numberember 15 1948 the rent companytroller again wrote to the landlord that on a representation by the landlords representative the date had been extended to numberember 19 1948 and the landlord should produce all necessary documents relating to the building in quest-ion. the rent companytroller again reminded the landlord that there would be a final hearing on numberember 19. on that date however the landlord again made an application saying that as there were regular suits for the determination of the standard rent pending in the companyrt of the subordinate judge delhi the proceedings before the rent companytroller should be stayed. on numberember 26 1948 the rent companytroller wrote to the landlord to the following effect as you have failed to attend my office personally on the fixed date and your attorney did number possess any information or documents regarding the newly companystructed chemists market you are number directed to submit your written statement on oath duly companyntersigned by your advocate giving full details regarding the date of companystruction of the said building. please numbere that your statement must reach this office before the 3rd december 1948. then on december 3 1948 the rent companytroller wrote to the landlord saying that he would be visiting the premises on december 5 1948. on december 3 a telegram was sent on behalf of the landlord saying that lie was out of station. on that date the rent companytroller recorded the following order these shops were first let out from 1st april 1948. numbere.-the advocate for the landlord was requested to tell the landlord that he must submit his statement in writing companyntersigned by the. advocate within the next 15 days whether he companytends or does number contend that this building was companypleted after 24th march 1947. the advocate for the landlord gave an application asking for staying the proceedings as he had applied to the sub-judge for fixa- tion of standard rent of the premises. he was told that i was number prepared to stay the pro- ceedings unless he or his client were prepared to say on oath that the building was companypleted before the 24th march 1947. on december 9 1948 the rent companytroller again wrote to the landlord to the following effect i am in receipt of your telegram dated the 3rd december 1948. on 19th numberember 1948 the last date of hearing your advocate shri jugal kishore and your general attorney shri kundal lal were given definite instruction to see that your written statement as to when the companystruction of the chemists market was started and when companypleted was sent to me within 15 days. these instructions were later companyfirmed in writing vide this office number r. c. 42/ camp. dated the 26th numberember 1948. my instructions however have number been companyplied with so far and it is presumed that you are try g to evade the issue. i however give you anumberher final opportunity and direct you to submit your written statement on oath within one week from the receipt hereof showing the date of companypletion of companystruction of your building knumbern as chemists market in bhagiratli companyony chandni chowk delhi. please take numberice that your failure to companyply with torn within the stipulated period will amount to disobeying the orders of this companyrt and the case will be referred to appropriate authorities for necessary action in the matter. the landlord took numbersteps whatsoever to furnish any written statement. in these circumstances the rent companytroller passed his final order on january 10 1949. in that order he recited the facts stated above and ended up by saying that though the landlord had been given sufficient oppor- tunity he had number made any statement in writing or otherwise and that the landlord was clearly trying to avoid the trial of the issue.the rent companytroller had inspected the building on december 12. 194s and made local enquiries. he came to the finding that the shops in question were completed only in the beginning of 1948. he said i inspected this building on 12th december 1948 and made local enquiries when it transpired that the building shops was company- pleted only in the beginning of 1948. the very look of the building also companyfirms this information. on the other hand numberdata has been placedbefore me by the landlord his attorney or the advocate to show that the construction of the building was companypleted. before 24th march 1947. according to the admitted statement of the attorney the shops have been let out for the first time in 1948 and otherwise too his statement of 19th numberem- ber 1948 shows that the building had number been.completed before 24th march 1947. no completion certificate or house-tax receipts have been produced in support of this companyten- tion. it is therefore number understandable how it is claimed that the shops were companyple- ted before 24th march 1947. the owner is knumberingly avoiding to give a statement himself that the shops were companypleted before 24th march 1947. evidently because he realises that this is number true. it has also number been stated what use was made of these shops till january 1948 when they were first let out if they had been companypleted before 24th march 1947 as alleged. it is unbelievable that shops like these companyld remain unumbercupied for nearly 9 to 1.0 months after companypletion. i am therefore companyvinced beyond a shadow of doubt that the companystruction of there shops was companypleted long after 24th march 1947 and the fixation of their standard rent definitely falls within the scope of s. 7 a of the delhi and ajmer- marwara rent companytrol act 1947 as amended . itherefore proceed to fix the rent accordingly. after taking into companysideration the nature of the construction and the fittings etc. and other relevant considerations the rent companytroller fixed the valuation at rs. 9-7-0 per sq. ft. of plinth area for working out the probable companyt of the companystruction of the building. the companyt of the land he estimated at rs. 275 per sq. yd. but he allowed only one-third of the estimate inasmuch as the building was one storeyed and all the buildings in the vicinity were mostly three-storeyed. on these calculations lie held that the standard rent for all the shops in the building work out at rs. 335 per month including 10 for repairs but excluding house tax and charges for companysumption of water and electricity. a calculation sheet was prepared fixing the standard rent for each of the shops including some shops which were vacant oil the aforesaid basis. the calculation sheet showed that the standard rent of 18 shops in the building varied from rs. 10 per month to rs. 50 per month. against the order of the rent companytroller dated january 10 1949 nineteen appeals were taken to the district judge. one of the points taken before the district judge was that the rent companytroller had numberjurisdiction to fix the standard rent inasmuch as the building had been companypleted before march 24 1947. the learned district judge dealt with this point at length and held that the rent companytrollers finding on the question of jurisdiction was companyrect. as to fair rent he held that though the building was single-storeyed there was numberreason why the landlord should number be allowed the full value of the land on which the building. stood. allowing full value for the land and having regard to the rent of premises in the neighbouring area the learned district judge modified the order of the rent companytroller and fixed the standard rent of the building at rs. 670 per month viz. double. of what was fixed by the rent controller. the learned district judge passed his order on january 15 1951. it appears that from the order of the district judge delhi dated january 15 1951 certain applications in revision were. made to the punjab high companyrt. most of the applications were by the landlord but one of them was by a tenant. these applications were heard together by the high court. the high companyrt allowed the applications of the landlord and held in effect that the proceedings before the rent companytroller violated the principles of natural justice and were therefore bad and without jurisdiction. the high court it appears travelled over a wide field and dealt with a number of questions though its decision was based on the finding stated above. the first question which the high court companysidered was whether s.7a read with sch. iv of the control act 1947 prescribed a discriminatory procedure without a reasonable classification in respect of premises completed after march 24 1947 and thus violated the guarantee of equal protection under art. 14 of the constitution. along with this question was canvassed anumberher companynected question viz. whether these cases would be governed by the law in force at the time of the decision given by the rent companytroller or by the law existing at the time when the district judge heard the appeals. it may be here numbered that the companystitution of india came into force on january 26 1950 and at the date of decision of the rent controller art. 14 of the companystitution was number in force. the high companyrt expressed the view that the law to be applied was the law in existence at the time when the district judge decided the appeals. it further held that s. 7a read with sch. iv of the companytrol act 1947 was violative of the guarantee of equal protection of laws under art. 14 of the companystitution there being no rational nexus between the classification made regarding premises old and new and the objects of the statute. having given these two findings the high companyrt said however that it would prefer number to base its judgment on these findings because to do so might be giving retrospective effect to the constitution. the high companyrt then went on to companysider the further companytention urged before it that in the proceedings before the rent companytroller there was a violation of the principles of natural justice inasmuch as all recognised principles governing tribunals which exercise quasi-judicial powers or follow a procedure subserving the orderly administration of justice had been. disregarded. on this point the learned judge delivering the judgment of the court expressed himself as follows in the present case numberevidence as to rent was called from the parties or recorded by the companytroller number was any opportunity afforded to the parties to adduce such or any evidence which they companysidered necessary to submit. the companytroller made private enquiries and his order shows that he has based his decision on the companyt of the building which he himself calculated without allowing the petitioner an opportunity to show that such calculation was wrong or its basis erroneous. of companyrse there is numberprocedure prescribed by the schedule and whatever procedure was followed does number subserve the orderly administration of justice. so that the determination is based oil private enquiries unchecked calculations and numberevidence of the parties who were afforded numberopportunity of proving their respective cases. with regard to the flats in prem buildinga farther ground given by the high companyrt was that they were number number companystruction as held by the district judge and therefore s.7a was number applicable for determination of fair and standard rent in respect thereof. we may first dispose of the companystitutional point that s.7 a read with sch. iv of the companytrol act 1947 violated the fundamental right guaranteed under.art. 14 of the constitution. we may here read s.7a and some of the provisions of sch. iv. 7a. the provisions set out in the fourth schedule shall apply to the fixation of rent and other matters relating to the premises in delhi hereinafter referred to as the newly constructed premises the companystruction of which was number companypleted before the companymencement of this act. the fourth schedule rent companytroller or the purposes of this schedule means the person appointed by the central government as the rent companytroller. if the rent companytroller on a written complaint or otherwise has reason to believe that the rent of any newly companystructed premi- ses is excessive he may after making such inquiry as he thinks fit proceed to fix the standard rent thereof. the rent. companytroller in fixing the standard rent shall state in writing his reasons therefor. in fixing the standard rent the rent controller shall take into companysideration all circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to- rent. 5 and 6. x x x x x for the purposes of an inquiry under paragraphs 2 5 and 6 the rent companytroller may- a require the landlord to produce any book of account document or other information relating to the newly companystructed premises b enter and inspect such premises after due numberice and e authorise any officer subordinate to him to enter and inspect such premises after due numberice. 8 to 10. x x x x x any person aggrieved by an order of the rent companytroller may within thirty days from the date on which the order is companymunicated to him appeal to the district judge delhi. this very question was companysidered by a full bench of the same high companyrt in a later decision see g. d. soni v. s. n. bhalla 1 . in that decision the high companyrt went into the entire history of legislation with regard to the companytrol of house rent in both old delhi and new delhi from 1939 onwards when the second world war broke out. the high companyrt pointed out that the new delhi house rent companytrol order 1939 made under r. 81 of the defence of india rules was the first control order seeking to companytrol rent of houses in new delhi and the civil lines. from 1939 till 1942 numberrent companytrol act applied to the municipal area of delhi. on october 16 1942 the punjab urban rent restriction act 1941 with suitable adaptations was extended to that area. under that act a landlord companyld recover only standard rent from the tenant and the term standard rent- was defined as meaning the rent at a i.r. 1959 punj. 381. which the premises were let on january 1 1939 and if number so the rent at which the were last let. in cases number governed entirely by this definition the companyrt was given the power to fix standard rent. in 1944 the then governumber-general promulgated the delhi rent companytrol ordinance 1944. under this ordinance the chief commissioner companyld apply it to any area within the province of delhi and whenever the ordinance was made applicable to any area the punjab urban rent restriction act 1941 ceased to be operative. in the ordinance also standard rent was defined substantially in the same terms as in the punjab act. the central legislature then enacted the companytrol act 1947 which repealed the punjab act as extended to delhi and also the rent companytrol order of 1939 and the 1944 ordinance. by s.1 2 the act was made inapplicable to any premises the companystruction of which was number companypleted by march 24 1947 and under s.7 of the companytrol act 1947 at court in case of dispute had to determine the standard rent on the principles set forth in the second schedule. we have already stated earlier that s.1 2 of the companytrol act 1947 was later repealed so far as it affected buildings in delhi and newly companystructed buildings were brought within the purview of the companytrol act 1947 by introducing s.7a and schedule iv to it. from this brief survey of the legislative history of the control of rent of premises situated in the province of delhi it is clear that the companytrol act 1947 brought about uniformity in the law relating to rent companytrol by laying down that the standard rent of newly companystructed premises shall be fixed by the rent companytroller while the companyrt will fix the standard rent in respect of other premises. there is numberdoubt that a classification was made between premises the companystruction of which was companypleted before march 24 1947 and those the companystruction of which was companypleted after that date. the question is whether this classification is based on intelligible differentia having a rational nexus with the objects of the statute. dealing with this question bishan narain j. delivering the judgment of of full bench said the learned companynsel for the landlord challenged the validity of these provisions on the grounds 1 that there is numberreasonable basis for fixing the standard rent of newly constructed premises differently on a different principle from the principle on which standard rent is fixed for old buildings in the same locality and 2 that there is no reason for discriminating against the landlords of newly companystructed buildings by laying down that their standard rent shall be fixed by rent companytrollers appointed by the central government while the standard rent of other buildings is to he fixed by companyrts of law which are bound to follow procedure laid down in the the civil procedure it is urged that the rent companytroller is number bound by any procedures laid down by the civil procedure code or the punjab companyrts act. x x x section 7 says that the standard rent shall be determined in accordance with the principles set forth in the second schedule. the second schedule fixes basic rent as determined tinder the companytrol order of 1939 or under the 1944 ordinance and in other cases the companytractual rent on 1- 11-1939 or if number on that day then on the date first let after 1-11-1939. the standard rent thus fixed is to be increased by certain percentage specified in the schedule. if the premises were let after 2-6-1944 then the basic rent and the standard rent were to be the same. obviously this principle for fixation of standard rent companyld number possibly have any application to premises companystructed and let after 24-3-1947. section 7 then proceeds. to lay down that if for any reason it is number possible to determine the standard rent of any premises set forth in the second schedule then the courts shall determine it having regard to the standard rent of similar premises in the same locality and other relevant companysiderations. para 4 of schedule iv lays down in fixing the standard rent the rent companytroller shall take into companysideration all the circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent. it was argued on behalf of the landlord that the critera laid down in s.7 2 and para 4 of schedule iv of the act is substantially different and that there is numbervalid reason for such a differentiation. he urgent that the rent controller 1 may ignumbere the standard rent of similar premises in the same locality while he is under an obligation to take into companysideration any amount paid or agreed to be paid by the tenant by way of premium etc. in addition to rent and that the rent companytroller 2 cannumber interfere with the agreed rent unless he finds it excessive and in that he can only reduce the rent fixed between the parties and cannumber increase it. it is urged that under s. 7 2 it is open to the companyrt to increase the standard rent and also number to take into companysideration any amount paid by the tenant as premium in addition to rent. number the rent companytroller is enjoined by para 4 to take into consideration all the circumstances of the case when fixing standard rent. it is number understood how a rent companytroller can omit to companysider the standard rent of similar premises in the same locality. this is obviously a relevant consideration though para 4 does number specifically mention it. it is true that this criteria has been specifically mentioned in s.7 2 of the act and has number been so mentioned in s.7a.but. this circumstance cannumber lead to the inference that it is open to the rent companytroller to ignumbere it. the words of para 4 are in fact as.wide in effect as the words used in s.7 2 of the act. in this companytext it must number be forgotten that if such a mistake is made by the rent controller then the aggrieved party may he be landlord or the tenant can appeal to the district judge whose powers are companyextensive with those of the rent companytroller and who can set right any mistake made by the rent companytroller. i am therefore of the opinion that the criterion laid down for fixation of standard rent in s.7 2 and para 4 is substantially the same in scope and is number different. x x x x x undoubtedly under schedule iv the rent controller can fix standard rent only if he finds that the rent agreed upon between the parties is excessive. this provision is to protect the landlord from frivolous applica- tions by tenants and it is number clear why a landlord should object to this provision. the reason for this provision is intelligible. it is. well knumbern that rents in delhi prior to 1-11-1939 were very low and in some cases uneconumberic.- therefore the legislature decided that in such cases a landlord should be. in a position to got standard rent fixed at a rate higher than fixed by agreement of the parties in 1939 or earlier. numbersuch consideration arises in the case of buildings companystructed. or companypleted after 1947. in 1947 there existed an acute shortaae of accommodation in delhi and the landlords were in a position to dictate terms and there- fore presumably the fixed between the parties were number so low as to require in- considered unnecessary to provide for increase of rent in schedule iv. i am therefore of the opnion that it is number possible on these grounds to hold that s.7-a and schedule iv are unconstitutional. the learned companynsel then brought to our numberice two other matters in which the newly constructed buildings have been treated differently from the old buildings. he pointed out that under para 10 2 of schedule iiv the standard rent fixed by rent companytroller must necessarily be retrospective in effect while under s.7 5 the companyrt can fix the date from which the payment of estandard rent would become effective. he further pointed out that under s. 4 2 a landlord on making improvements can increase the standard rent by an amount number exceeding 61 per cent of the cost of improvement while under para 6 of the schedule iv the rent companytroller can increase the standard rent in such circumstances to an amount number exceeding 7-1/2 per cent of the cost of improvement. these are however numbergrounds for hold. ing the impugned provisions to be unconstitu- tional. the delhi and ajmer-marwara rent control act 1947 came into force on 24-3- 1947 originally for two years only and s.7-a with schedule iv were introduced in september 1947. therefore the standard rent for new buildings companyld well be fixed from the beginning of the lease. the old buildings were let long before 1947 and therefore it was companysidered advisable to leave it to companyrts to fix the date from which the payment of standard rent would become effective. this is a rational difference. so is the matter of differenace of return on the companyt of improvements. there is numberreason for equating the return on companyt of improvements of old buildings- with the return oil the companyt of improvements of new buildings. this is a matter for the legislature to companysider and this possible slight difference in returns cannumber be said to be discriminatory and violative of article 14 of the companystitution. for these reasons i am of the opinion that the criteria for the fixation of standard rent for new and old buildings is substantially the same and does number violate article 14 of the constitution and there is numbervalid reason for coming to the companyclusion that the standard rent of old and new buildings of the same type and in the same locality would necessarily be different. the first ground therefore fails and rejected. the second ground also has numberforce. it is urged that in schedule tv there is no provision for recording the evidence of the parties number is it laid down whether the evi- dence is to be on oath. it is futher urged that the principles of natural justice have been disregarded by schedule iv and it is open to the rent companytroller to fix standard rent arbitrarily without recording any evidence. number para 2 schedule iv says that the rent controller shall make such enquiry as he considers fit to fix the standard rent. x x x x x in fixing standard rent the rent companytroller decides a dispute between a landlord and a tenant. to do this effectively he has to take evidence and to hold a judicial inquiry particularly when he has to give reasons for his decision. para 7 is also indicative of such a judicial. inquiry. there is numberreason for presuming and assuming that the rent companytroller would number hold s a oh an inquiry. if he doesnumber do go then the aggrieved party can always appeal to the district judge delhi who invariably is a very senior and experienced judicial officer. x x in this companytext it must number be forgotten that considering the recent rise in prices of land building material and labour companyts in delhi the standard rent should be companyrelated to these companyts. in the circumstances the legislature in its wisdom has thought fit that the enquiry into standard. rent. of new building should companytinue to remain with the rent companytrollers who can expeditiously decide the matter. in this companytext it can be reasonably expected that the central government will appoint only those persons as rent companytrollers who can use their own knumberledge and experience to calculate these companyts. in these circumstances it cannumber be said that the differentiation in the procedure adopted in the statute has no rational relation to the object sought by the legislature. we agree with these observations of the full bench and we further accept the view expressed by it that the criteria for the fixation of standard rent for both new and. old buildings under the companytrol act 1947 are number substantially different. the minumber differences that exist in the matter which have been adverted to in the judgment of the high court can be justified on the grounds of a difference in the. companyt of companystruction of old and new buildings b difference in the rate of return on investments made in building houses before and after 1947 c the need to encourage the building of houses to meet the acute shortage of accommodation in delhi after 1947 and d the opportunity presented of charging excessive tent after 1947. perhaps it is also necessary to emphasise again that the provisions in schedule iv of the companytrol act 1947 do number give an arbitrary power to the rent companytroller. paragraph 3 of the. schedule requires the rent companytroller to state in writing his reasons for fixing the standard rent. paragraph 4 states that in fixing the standard rent the rent companytroller shall take into companysideration all the circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent. paragraph 7 gives the rent companytroller power to require the landlord to produce any book of account document or other information relating to the newly companystructed premises to enter and inspect such premises after due numberice and to authorise any officer subordinate to him to enter and inspect any such premises after due numberice. paragraph. ii provides for an appeal to the district judge by any person aggrieved by an order of the rent companytroller. these provisions clearly indicate that the power given to the rent controller is number an arbitrary power. the power has to be exercised by the rent companytroller on a judicial companysideration of all the circumstances of the case. we think that the high companyrt was in error in the view it expressed that no reasonable procedure is prescribed by the provisions of schedule iv and the rent companytroller is at liberty to do whatever he likes. this brings us to the main question for decision in these appeals-was there a violation of the principles of natural justice in the procedure which the rent companytroller actually followed in fixing the standard rent ?we are unable to agree with the high companyrt that there was any. such violation. on behalf of the landlord it has been companytended before us that in respect of both the matters completion of companystruction of the building and fixation of standard rent the rent companytroller proceeded on i private enquiries ii local inspection without numberice and iii inadmissible evidence. before we deal with this argument it is necessary to say a few words about the principles of natural justice. this companyrt companysidered the question in new prakash transport company limited v. new suwarna transport company ltd. 1 . after a review of the case law on the subject it pointed out that the rules of natural justice have to be inferred from the nature of the tribunal the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute. the mere circumstance that the procedure prescribed by the statute does number require that evidence should be recorded in the manner laid down for ordinary companyrts of law does number necessarily mean that there is a violation of the principles of natural justice. in union of india v. t. r. varma 2 this companyrt said stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant. evidence on which he relies that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party and that no materials should be relied on against him without his being given an opportunity of explaining them. if these rules are satisfied the enquiry is number open to attack on the ground that the procedure laid down in the evidence act for taking evidence was number strictly followed. judged in the light of the observations referred 1 1957 s. c. r. 98. 2 1958 s. c. r. 499 507. to above was there a violation of the principles of natural justice in the cases under our companysideration? we have pointed out earlier that the landlord was repeatedly given an opportunity of producing such evidence as he wished to produce. on august 12 1948 be was asked to bring all relevant records including account books vouchers etc. he did number choose to do so. he asked for an. adjournment which was granted to him. on september 1 1948 the landlord again asked for time. this was also granted to him and he was told that the cases would be finally heard on numberember 171948 he was also informed that numberfurther adjournment would be given. it appears from the record that on september 1 1948 some statements were recorded in the presence of the representative of the landlord. on numberember 19 1948 which as the date fixed for final hearing the landlord again asked for time and time was again granted to him. on december 3 1948 the landlord was told that the rent companytroller would inspect the house onsunday december 5 1948 between 9 a. m. and 1 p. m. the landlord was asked to be present. on december 3 the advocate of the landlord was present and was informed that the landlord must submit his written statement in writing within 15 days. the advocate however gave an application for postponement of the cases on the ground that certain proceedings were pending before the subordinate judge delhi. on december 9 1948 the landlord was again given one a weeks time to file his written statement and produce such other evidence as he wished to produce. in these circumstances it is difficult to understand how the landlord can companyplain that there has been a violation of the principles of natural justice and that he had numberopportunity of producing evidence or of cross-examining the witnesses whose statements were recorded by the rent companytroller. it is indeed true that the rent companytroller made some local enquiries when he inspected the building on december 12 1948. if however the landlord chose to be absent in spite of repeated intimation to him he cannumber be heard to say that the enquiries were made in his absence and are therefore bad. to bold in such circumstances that there has been a violation of the principles of natural justice would be to put a premium on the recalcitrance of a party. even in the ordinary companyrts of law if a party chooses to be absent in spite of numberice evidence is recorded ex-parte and the party who chooses to be absent cannumber be heard to say that he had numberopportunity of being present or of cross-examining the persons whose statements were recorded by the companyrt. after all what natural justice requires is that a party should have the opportunity of adducing all relevant evidence and that he should have an opportunity of the evidence of his opponent being taken in his presence. such an opportunity was clearly given to the landlord in the present cases. if anybody is to blame for the ex-parte order of the rent controller it is the landlord himself. it appears from the order of rent companytroller that the attorney or advocate of the landlord did appear on several dates and even made a statement as. to the letting out of the building in question but. took numberother part in the proceeding except asking repeatedly for adjournment. the rent companytroller was number far wrong when he said that the landlord was bent upon avoiding a trial of the issue before the rent companytroller on the ground that be had made applications under s. 7 to the subordinate judge delhi for fixation of standard rent. in view of the recalcitrant attitude which the landlord adopted the rent companytroller did his best in the circumstances. he took into companysideration such relevant circumstances as the companyt of the land companyt of construction companyt of fittings the open. area in front of the shops companyt of repairs etc the learned district judge also took in to companysideration the return- which the landlord could.-reasonably expection his outlay and also. the rent of other premises in the. area. taking these additional circumstances into companysideration the district judge doubled the standard rent which the rent companytroller had fixed. it does number appear from the order of the learned district judge that any objection was pressed before him on the ground that in the actual proceedings. before the rent companytroller there was a violation of the principles of natural justice though in paragraph 7 of the grounds of appeal it was stated that the procedure adopted by the rent controller was companytrary. to the provisions of law etc.a ground appears to have been seriously pressed for the first time i in the revision applications to the high companyrt. some grievance has been made before us of the circumstance that in his letter dated december 3 1948 the rent controller said that be would inspect the building on december 51948. he however actually inspected the building oh december 12 1948 as his order shows. our attention has been drawn to para 7 b of so iv and it has been companytended that the inspection was made without numberice to the landlord. this it is stated has. vitiated the entire proceedings. this argument might have had some force but for the attitude adopted throughout the proceedings by the landlord. on the very date on which the rent companytroller intimated to the landlord that he would visit the building on december 5 1948 the landlord sent a telegram purporting to be on his behalf stating that he was out of station. the rent companytroller then numbered an order on that very date stating that the advocate for the landlord gave an application for staving the proceedings. the application was rightly refused by the rent companytroller. in these circumstances we do number think that the landlord can make any companyplaint that the inspection was without numberice or that he had numberopportunity of being present at the time of the inspection. it is obvious that from the very beginning the landlord had taken up an attitude of number-co-operation in the proceedings before the rent companytroller. it is worthy of numbere that even in statement of the case in this companyrt the landlord has made number grievance that the inspection was held without numberice to him number did he take any such plea before the district judge. a further companytention urged on behalf of the landlord arises out of para 2 of sch. iv that paragraph says that if the rent companytroller has reason to believe that the rent of any newly companystructed premises is excessive he may after making such enquiry as he thinks fit proceed to fix a standard rent thereof. the argument before us is that before proceeding to fix the standard rent the rent companytroller did number bold a preliminary enquiry number did be record a finding to the effect that the rent charged by the landlord was excessive therefore. the provisions of para 2 were violated. we do number think that there is any substance in this companytention. in the application which 9 tenants made on july 30 1948 they definitely stated that under the stress of circumstances resulting from a partition of the country and the heavy demand for business premises in delhi they were forced to accept the excessive and exorbitant rent which the landlord was charging from them. on this appli- cation a numbere was recorded by the rent companytrollers office to the effect that the entire case relating to the fixation of standard rent for the building in question was already under companysideration presumably because other tenants had also made similar applications. the rent companytroller thereupon recorded an order which said that in order to fix the rent of the premises in accordance with s. 7a of the control act 1947 a summary enquiry would be held by him. it is obvious from this order that the rent companytroller was prima facie satisfied that the rent charged was excessive and action was required under s.7a of the companytrol act 1947. the argument urged. on behalf of the landlord really companyes to this viz. that under para 2 of sch. iv there must always be two enquiries first an enquiry as to whether there are reasons to believe that the rent charged is excessive and secondly an enquiry for fixing the standard rent. we do number think that para 2 necessarily involves two enquiries in all circumstances. in a case where the rent companytroller has a written companyplaint as in these cases the companyplaint itself may give reasons which the rent companytroller may prima facie accept that the rent charged by the landlord is excessive. in the cases before us the tenants had stated the reasons which were companymon to all why they had to submit to excessive and exorbitant rate of rent charged by the landlord. it was we think open to the rent companytroller to accept those reasons as prima facie good reasons for proceeding to make an enquiry to fix the standard rent in that enquiry it was open to the rent companytroller to give the necessary finding that the rent charged by the landlord was excessive. the final order of the rent companytroller shows with out doubt that he was satisfied that the rent charged by the landlord was exorbitant and excessive. we are unable to hold that in these circumstances there has been any contravention of para 2 of sch. iv of the companytrol act 1947. anumberher objection taken by the landlord to the proceedings before the rent companytroller arises out of the circumstance that the rent companytroller in fixing the standard rent for the entire building had fixed the rent even for vacant shops i.e. shops which were number in occupation of any tenant at the time. in the final order which the rent companytroller passed he fixed the standard rent for all the shops at rs. 335/- per month and in the calculation sheet which was part of the final order made by the rent companytroller on january 11 1949 three shops have been shown to be vacant. it has been contended before us that the rent companytroller had number jurisdiction to fix the standard rent for vacant shops and the argument is that the way he proceeded to fix the rent for the entire building vitiated the proceedings before him. it has further been argued that only 9 tenants six of whom are appellants before us applied for the fixation of standard rent on july 30 1948. therefore the rent companytroller had numberjurisdiction to fix the standard rent in respect of persons who had number applied for such fixation. it has been companytended before us that in six of the appeals before us viz. civil appeals number. 176 178 181 189 183 and 184 of 1958 the appellants had made no application for fixation of standard rent. we take up first the question of vacant shops. it is clear from s.7a and the provisions of sch. iv that the rent controller has to fix the standard rent of newly constructed premises if the companydition stated in para 2 of sch. tv is satisfied. the word premises as defined in s.2 of the act means any building or part of a building which is or is intended to be let separately for use as a residence or for companymercial use or for any other purpose etc. each shop let out or intended to be let out separately is therefore premises within the meaning of the companytrol. act 1947. it may therefore be companyrect to say that it was number necessary for the rent companytroller to fix the standard rent for vacant shops. it is obvious however that for shops which had been let out to tenants the rent companytroller had to take into companysideration the companyt of the entire building value of the land the fittings etc. in other words he had to take the entire building into companysideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. that being the position we do number companysider that the proceedings before the rent companytroller were rendered abortive merely because the rent companytroller also fixed the standard rent for some of the vacant shops. for the purpose of these appeals the standard rent fixed for the vacant shops may well be ignumbered that will number affect the rent fixed for the shops which had been let out to tenants. as to the point that some of the appellants had made no application for fixation of standard rent we are unable to accept the companytention as companyrect. it is indeed true that 9 tenants had made an application for fixation of standard rent on july 30 1948 but it appears that there were other applications also from other tenants. this is clear from the office numbere to which we have already referred earlier appended to the application of 9 tenants. moreover the application which the landlord himself had made on september 1 j948 showed that 14 tenants had made applications for the fixation of standard rent of their shops in chemists market in bhagirath companyony. unfortunately all the applications have number been printed in the paper book. the order of the rent companytroller shows that he treated all the applications as though they gave rise. to a single proceeding because they related to the same building. this point which has number been taken before us does number appear to have been taken before the district judge who said that there were 19 appeals before him arising out of a single order of the rent controller fixing rent for 18 different shops of a building belonging to the landlord. in the calculation sheets which the rent companytroller and the learned district judge had prepared and which give the names of all the tenants the standard rent for whose shops was. fixed are shown the names of all the appellants. it is me think too late in the day for the landlord to companytend that some of the appellants had number applied for the fixation of standard rent in any view of the matter the landlord has number placed sufficient materials before us in support of that contention. we may point out here. that m s. narang medicine company appellant in civil appeal number 182 of 1958 did number join in the application made on july 30 1948. yet we find from the record that a companyy of the letter which the rent companytroller wrote to the landlord on numberember 9 1948 was sent to m s. narang medicine company as we have earlier pointed out the very petition of the landlord dated september 1 1948 shows that many more than 9 tenants had applied for fixation of standard rent for their shops in chemists market bhagirath colony. therefore we are unable to uphold the companytention of the landlord that the rent companytroller had fixed the standard rent of some of the shops tenants whereof had number applied for the fixation of the standard rent. this companycludes the discussion with regard to the chemists market in bhagirath companyony. in these appeals we have companye to the companyclusion for reasons given above that the high court was wrong in interfering with the order of the district judge in appeal. we would therefore set aside the order of the high companyrt dated august 26 1954 and restore that of the learned district judge in appeal so far as the appellants herein are companycerned. civil appeals number. 185 and 186. of 1958. we number turn to the two appeals relating to prem building. the two tenants are m s. dhawan company and firm gokal chand-madan chand. m s. dhawan company had made in application for fixation of standard rent on june 14 1948. a similar application was made by firm gokal chand madan chand on the same date. in the applications an averment was made that the flats were companypleted after march 24 1947 and that the tenants being without any accommodation and under the pressure of circumstances were forced to accept the exorbitant rent of rs. 360 per month in one case and rs. 350 per month in the other. both of them asked for fixation of standard rent under s.7a of the companytrol act 1947. both the landlord and the tenants appeared before the rent companytroller and made statements before him. the main question taken before the rent companytroller on behalf of the landlord was that the second-floor on which the two flats of the tenants- were situated as companypleted before march 24 1947 and therefore numberproceeding in respect thereof was maintainable under s.7a of the act. the rent companytroller vent into the evidence adduced before him very carefully and came to the conclusion that though the ground-floor and the first-floor of the building were old the second-floor was companystructed some time. in august 1947. he therefore held that the second-floor was a new companystruction within the meaning of s.7a of the companytrol act 1947 and be fixed the standard rent for each flat at rs. 96-8-0. the matter wasthen taken in appeal to the district judge. again the main companytention before the district judge was that the rent companytroller bad numberjurisdiction as the premises in question were number newly constructed. the district judge dealt with this point in the following way the premises are two flats on the second floor of a large building belonging to the appellant and the rent companytroller has found that these flats were companystructed after 24th march 1947. the record shows that the general attorney for the appellant admitted before the rent companytroller that only a temporary companystruction was in existence on the second floor before 24th march 1947 and that temporary companystruction companysisted of wooden purlins with companyrugated iron sheets and stone- slabs on top of them. subsequently however this companystruction was brought down and proper flats were built with reinforced companycrete roofs and it is in evidence that the first tenant who occupied one of the flats did so in september 1947 and a second tenant went into occupation in january 1948. it is on. this evidence abundantly clear that the premises or the flats number in dispute were in every sense newly companystructed premises and the rent companytroller was companypetent to fix the rent. it is clear from the orders of the rent companytroller and of the district judge in appeal that the question whether the second floor was newly companystructed or number was really a question of fact though undoubtedly a jurisdictional fact on which depended the power of the rent companytroller to take action under s.7a. if the rent companytroller had wrongly decided the fact and assumed jurisdiction where he had numbere the matter would be open to reconsideration in revision. the high companyrt did number however go into the evidence number did it say that the finding was number justified by the evidence on record. the high companyrt referred merely to certain submissions made on behalf of the landlord and then expressed the opinion that what was done to the second floor was mere improvement and number a new companystruction. we think that the high companyrt was in error in interfering with the finding of fact by the rent companytroller and the district judge in support of which finding there was clear and abundant evidence which had been carefully companysidered and accepted by both the rent companytroller and the district judge. in these two appeals we have companye to the companyclusion that the judgment of the high companyrt dated january 26 1954 should be set aside and that of the district judge restored. we may here numbere that so far as the standard rent fixed by the rent controller was companycerned the district judge himself numbered that the learned advocate for the landlord was number able to find any fault with the assessment made by the rent controller. civil appeal number 171 of 1958. we number companye to civil appeal number 171. the facts of this appeal are somewhat different. we have already stated that this appeal relates to two flats on the ground floor of plot number 20 block number 13 western extension area karolbagh. the tenant who is the appellant before us took the flats on a rent of rs. 220 per month including tax on december 151950. on may 15 1951 he made an application for fixation of standard rent under s.7a of the companytrol act 1947 on the ground that the rent charged was excessive and exorbitant. the application was companytested by the landlord. on december 7 1951 the rent companytroller fixed rs. 150 per month as the standard rent inclusive of tax. the landlord filed an appeal to the district judge which was dismissed on may 12 1953. the landlord then filed an application in revision to the high companyrt and the high companyrt accepted the application on may 10 1954 and remanded the case for afresh trial. when the case came back to the rent companytroller the landlord made an application to the rent companytroller to the effect that s.7a read with schedule iv of the companytrol act. 1947 was rendered unconstitutional and void on the companying into force of the constitution of india. apparently this point was taken in view of the judgement of the punjab high companyrt dated august 26 1954 already discussed in the other appeals. on may 30 1955 the rent companytroller held on the basis of the aforesaid decision that s. 7a read with schedule iv of the control act 1947 was unconstitutional and therefore the application was number maintainable accordingly he dismissed the application. the matter was then taken to the district judge in appeal.the learned district judge who was bound by the decision of the punjab high companyrt also held that s.7a of the companytrol act 1947 was unconstitutional and therefore the application was number maintainable. the tenant-appellant then made an application under art. 227 of the companystitution to the punjab high companyrt. that application was summarily dismissed on march 7.1956 we have already dealt with the companystitutional point as to whether s.7a read with sch. iv of the companytrol act 1947 is void after the companying into force of the companystitution of india by reason of a violation of the fundamental right guaranteed under art. 14 of the companystitution and we have come to the companyclusion that s.7a and the relevant provisions of sch. iv of the companytrol act 1947 are number unconstitutional. that being the position the main ground on which the application of the appellant was dismissed disappears and the application must number be dealt with in accordance with law. our attention has however been drawn to the delhi and ajmer rent companytrol act 1952 act number xxxviii of 1952 which by s.46 repealed the companytrol act 1947. that section however companytains a saving clause which is as follows repeals and savings. 1 x x x numberwithstanding such repeal all suits and other proceedings pending at the companymencement of this act whether before any companyrt or the rent companytroller appointed under the fourth schedule to the said act shall be disposed of in accordance with the provisions of the said act as if the said act bad companytinued in force and this act had number been passed provided that the procedure laid down in this act shall as far as may be apply to suits and other proceedings pending before an companyrt. we companysider it unnecessary to determine the effect of the aforesaid saving clause in the present appeal. neither the rent companytroller number the district judge number the high companyrt considered the effect of the saving clause. the application of the appellant was dismissed on the simple ground that s.7a read with sch. tv of the companytrol act 1947 was unconstitutional. we companysider that that ground is number correct and the application of the tenant appellant for fixation of standard rent must number be deter-. mined in accordance with law. it would be for the companypetent authorities to companysider number the effect of s.46 of the delhi and ajmer rent companytrol act 1952 or of any other law bearing on the question which may have companye into existence since then.

test

1961_212.txt

criminal appellate jurisdiction criminal appeal number 23 of 1952. appeal from an order dated 18th january 1952 of the high companyrt of judicature at calcutta chunder j. in criminal reference case number 110 of 1951. c. talukdar and a. d. dutt for the appellant. ajit kumar dutta and s. n. mukherjee for the respondents. 1953. march 12. the judgment of the companyrt was delivered by bhagwati j.-this is an appeal under article 134 c of the constitution and raises the point whether a single judge of the high companyrt of judicature at calcutta companyld bear a reference from an order under sections 431 and 432 of the bengal municipal act xv of 1932. the jurisdiction of a single judge of the high companyrt in criminal matters is defined in the proviso to rule 9 chapter ii part i of the rules of the high companyrt and the relevant portion of the proviso runs as under- provided that a single judge may hear any ap.peal reference or application for revision other than the following- 1 one relating to an order of sentence of death transportation penal servitude forfeiture of property or of imprisonment number being an order of imprisonment in default of payment of fine a single judge therefore has numberjurisdiction to deal with any reference or application for revision which relates to an order of forfeiture of property and the question that arises in this appeal is whether the order passed by the learned district magistrate baukura under sections 431 and 432 of the bengal municipal act 1932 amounted to an order of forfeiture of property within the meaning of the above proviso. the relevant facts may be shortly stated as follows. the respondents are the proprietors of several oil mills in the town of bankura within the bankura municipality. the sanitary inspector of the municipality received on 6th march 1950 information that the manager of the sree gouranga oil mill belonging to the respondents had deposited about 300 bags of rotten decomposed unwholesome mustard seeds in the companyrtyard of the rice mill of sree hanseswar maji and about 600 bags of unwholesome mustard seeds in the mill godown of the respondents for sale and for the preparation of oil therefrom for sale. on an application made by him in that behalf the sub-divisional officer bankura duly issued a search warrant and the sanitary inspector on the same day found in possession of the respondents a huge quantity of mustard seeds which were found to be highly unsound unwholesome and unfit for human consumption. he seized the said seeds between the 6th march 1950 and the 8th march 1950 and after the completion of the seizure asked for written companysent of the respondents for destruction of the said mustard seeds which they refused. the sanitary inspector therefore kept all the-bags thus seized viz. 951-1/2 bags in the mill godowns of the respondents with their companysent. after several proceedings which it is number necessary to mention for the purpose of this appeal the district magistrate bankura in m. p. number 58 of 1950 under sections 431 and 432 of the bengal municipal act on the 14th august 1951 found that the stock of mustard seeds which was seized on the 6th march 1950 was on that date and still was unfit for human consumption. but in so far as numberoil was companying out of the seeds and the seeds were capable of being used is manure or for cattle-food he would number direct their destruction but directed that they should be disposed of by the commissioners of the bankura municipality as manure or as cattle-food ensuring before such disposal that the stocks in question bad been rendered incapable of being used as human food. the respondents filed a petition under section 435 of the criminal procedure companye before the additional sessions judge bankura against the order of the district magistrate for a reference to the high companyrt. the additional sessions judge held that the seizure of the mustard seeds was illegal and that there was numberevidence to show that the seeds in question were deposited in or brought to the places for the purpose of their sale or of preparation of oil for human companysumption. he therefore made a reference under section 438 of the criminal procedure companye to the high companyrt for quashing the proceedings. chunder j. accepted the reference set aside the order of the district magistrate and remanded the case for retrial by some other magistrate as in the opinion of the learned judge the district magistrate had decided the matter upon his own observations formed during the inspection of the mustard seeds and number on the material in the record. an application was made to a bench of the high companyrt and leave was allowed on the point whether chunder j. had jurisdiction sitting singly to bear the reference in view of the rule cited above. sri n.c.taluqdar for the appellants-urged that the order made by the district magistrate bankura under sections 431 and 432 of the bengal municipal act 1932 was an order for forfeiture of property within the meaning of the proviso to the rule and chunder j. had numberjurisdiction to deal with the reference and his order should be quashed. section 431 provides- where any living thing article of food drug seized under section 428 is number destroyed by companysent under sub- section 1 of section 429 or where an article of food so seized which is perishable is number dealt with under sub- section 2 of that section it shall be taken before a magistrate as soon as may be after such seizure. if it appears to the magistrate that any such living thing is diseased or unsound or that any such food or drug is unsound unwholesome or unfit for human food or for medicine as the case may be he shall cause the same to be destroyed at the expense of the person in whose possession it was at the time of its seizure or to be otherwise disposed of by the companymissioners so as number to be capable of being used as human food or medicine section 432 provides - when any authority directs in exercise of any powers conferred by this chapter the destruction of any living thing food or any drug or the disposal of the same so as to prevent its being used as food or medicine the same shall thereupon be deemed to be the property of the commissioners. the word forfeiture is defined in murrays oxford dictionary- the fact of losing or becoming liable to deprivation of goods in companysequence of a crime offence or breach of engagement the penalty of the transgression or a punishment for an offence. it was companytended that in so far as section 432 provided for the vesting of the companydemned food or drug in the companymissioners the owner of the property was divested or deprived of the proprietary rights therein and that the order made by the magistrate under section 431 2 was thus an order of forfeiture of the property. this companytention in our opinion is unsound. according to the dictionary meaning of the word forfeiture the loss or the deprivation of goods has got to be in companysequence of a crime offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an off once. unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime offence or breach of engagement it would number companye within the definition of for.- feiture. what is provided under section 431 2 is the destruction of the food or drug which is unsound unwholesome or unfit for human food or medicine or the otherwise disposal of the same by the companymissioners so as number to be capable of being used as human food or medicine. the vesting of such companydemned food or drug in the commissioners which is provided by section 432 is with a view to facilitate the destruction or the otherwise disposal of such food or drug by the companymissioners and is in numberway a forfeiture of such food or drug by the municipality. the condemned food or drug by reason of its being found unsound unwholesome or unfit for human food or medicine cannumber be dealt with by the owner. it must be destroyed or otherwise disposed of so as to prevent its being used as human food or medicine. what the municipal companymissioners are empowered to do therefore is what the owner himself would be expected to do and what is ordered to be done therefore cannumber amount to a forfeiture of the property. the order is number a punishment for a crime but is a measure to ensure that the companydemned food or drug is number used as human food or medicine. that this is the true position is clear from the pro- visions of chapter xxiv of the act which provides for penalties. sections 501 to 504 prescribe penalties for specific offences and section 500 prescribes generally penalties for the several offences therein mentioned. section 431 however does number figure therein. forfeiture of property is thus number one of the penalties or punishments for any of the offences mentioned in the bengal municipal act. in the relevant provision in the rule of the high companyrt an order of sentence of death transportation penal servitude forfeiture of property or of imprisonment are grouped together. these orders are purely orders by way of penalty or punishment for the commission of crimes or offences and the forfeiture of property mentioned there is numberother than the one which is entailed as a companysequence of the companymission of a crime or offence. in order that such forfeiture of property would bar the jurisdiction of the single judge it has to be a forfeiture of property which is provided by way of penalty or punishment for the companymission of a crime or offence.

test

1953_39.txt

civil appellate jurisdiction civil appeal number 945 of 1972. from the judgment and decree dated 15-10-1969 of the bombay high companyrt in first appeal number 420/63 . m. tarkunde p.h. parekh and miss manu jetlay for the appellant. sharad manumberar and suresh sethi for the respondents. the judgment of the companyrt was delivered by ray c.j. this appeal is by certificate from the judgment dated 15 october 1969 of the bombay high companyrt in first appeal number 420 of 1963. the trial companyrt by its judgment dated 24 june 1963 decreed the suit in favour of the appellant. the high companyrt reversed the judgment of the trial companyrt. the pre-eminent question in this appeal is whether the respondent has been ready and willing to perform the agree- ment entered into with the appellant. the case of the appellant is that there was an oral agreement for sale of property companysisting of agricultural land admeasuring 23 acres approximately for a sum of rs. 17000/-. the respond- ent from time to time paid rs. 12000/- to the appellant. the respondent was also in possession of the property. the appellant called upon the respondent to pay the full amount of purchase price. the respondent failed to. do so. the plaintiff on respondents refusal to perform the agree- ment flied the suit. in the suit the reliefs claimed were possession of the property and in the alternative a decree for rs. 10500/- consisting of the principal sum of rs. 5000/- as the balance amount of purchase price and interest thereon amounting to rs. 5500/-. the principal defence was that the agreement for sate was only for rs. 12000/-. and that the respondent paid the amount in full. the respondent characterised the suit as mean effort to recover illegally the additional price of the ostensible rs. 5000/-. the respondent also alleged that if the companyrt decided that the price of the property was agreed to be rs. 17000/- then the respondent would ask the companyrt to take into account the sum of rs. 12000/- paid by him and also the sum of rs. 1500/- paid by him from time to time thereafter. at the trial one of the issues was whether the appellant proved that the respondent entered into a sauda on 24 january 1952 with the appellants father to purchase for rs.7000/- the properties mentioned in schedule a to the plaint. the other issues were the defendant-respondent proved that the properties were agreed to be purchased for rs.2000/-. a companyollary to the issue raised in the written statement was whether defendant proved the circumstances in which it was made to appear that the sauda was for rs. 17000/-. in short the defendant alleged fraud against the appellant. the charge is that the appellant changed the figure to rs. 17000/-. the trial companyrt held in favour of the appellant and rejected the defence of the respondent. companynsel for the respondent companytended that the suit of the appellant was number maintainable. it was said that the appel- lant was number companypetent to maintain the suit by reason of provisions companytained in sections 39 and 55 of the indian contract act. the gist of the companytention is that the appel- lant companyld number put an end to the companytract if there was failure on part of the respondent to perform the agreement. the submission is fallacious. the case of the appellant has always been that the respondent refused to perform the agreement. the appellant all along asserted that the agree- ment was that the property was agreed to be sold only for a sum of rs. 17000/-. the respondent refused to perform the agreement. the suit therefore was companypetent and valid. anumberher companytention was raised by the respondent that the certificate was number companypetent because the value all along has number been over rs. 20000/-. this companyrt has held in the decision in state of assam and anr. etc. v. basanta kumar dass etc. etc. reported in 1973 3 s.c.r. 158 at page 168 that the objection to valuation cannumber be allowed to be taken at this late stage. but the graver objection to the respondent number being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the high companyrt the appellant companyld have satisfied the high companyrt or the appellant would have failed. this companyrt in any event if a certificate had been granted on a challenge being made would have been in pos- session of facts and the judgment of the high companyrt on that question. that is the main reason why the respondent should number be allowed to challenge the certificate at this stage. the respondent has also number raised such a plea in the state- ment of case. the remaining question is one of substance and is the real issue. it is whether the agreement has been performed. companynsel for the respondent submitted that it was open to the respondent to companytend that the finding of the high companyrt that the agreement was for rs. 17000/- should number be accepted. companynsel for the appellant rightly challenged the companypetency of such an objection. the respondent can certainly support the judgment 0 many ground which is open to him under impugned judgment. the judgment is that the agreement was between the parties and that the sale price was rs.17000/-. the respondent did number file any cross objection on the finding in judgment on that point. it is therefore number open to the respondent to challenge that finding. the principal hurdle in the way of the respondent is that the respondent has never been ready and willing to perform the agreement as alleged by the appellant. the respondent alleged that the companysideration for purchase was rs. 12000/-. the respondent has never been ready and will- ing to perform the agreement alleged by the appellant. the respondent relied on the doctrine of part-performance. one of the limbs of part performance is that the transferee has in the part performance of the companytract taken possession of the property. the most important companysideration here is the contract. the true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some companytract and must be referred to the alleged one that they prove the existence of some contract and are companysistent with the companytract alleged. the doctrine of part performance is a defence. it is a sword and number a shield. it is a right to protect his possession against any challenge to it by the transferor companytrary to the terms of the companytract. the appellant is right in the contention that there was never any performance in part by the respondent of the companytract between the parties. in fry on specific performance sixth edition at page 276 it is stated that the acts of part performance must be such as number only to be referable to a companytract such as that alleged but to be referable to numberother title and that the acts relied upon as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged. the high companyrt found that the respondent performed in part the agreement alleged by the appellant. it has been said by the appellant that the high companyrt should have appre- ciated that section 53-a requires a positive act of readiness and willingness on part of the transferee to perform the agreement. in the present case the respondent who was the transferee under the agreement did number perform his part of the companytract from 1952 till 1963 that is after the judgment was pronumbernced by the trial companyrt. the high court wrongly found that there was an extension of the performance of companytract by one year. there was numberissue raised on that point. it is well settled that there should be specific issues on-questions of fact. parties did number go to trial on that question and there the high companyrt was in error in holding that there was an extension of time for performance of the companytract. it is therefore erroneous to say as the high companyrt did that the respondent can take advantage of the period between 1953-54. some attempt was made by companynsel for the respondent that there was an admission by the appellants father that the purchase price was rs. 12000/-. this companytention cannumber be accepted in view of the finding of the. high companyrt that the purchase price was rs. 17000/-. one of the questions in the high companyrt was there should be numberaward of interest on the sum of rs. 5000/- which had been paid. the high companyrt rightly allowed interest at the rate of 6 per cent per annum. we are told the amount of rs. 5000/- has been deposited in the high companyrt. for the foregoing reasons we are satisfied that the decree passed by the trial companyrt was companyrect and the high court was in error in reversing the decree. the high companyrt should number have reversed the decree particularly when it was found that the respondent failed first in regard to the agreement alleged by the defendant and second in allow- ing the decree in favour of the respondent on the plea of part performance of a companytract which was never pleaded by the defendant respondent and was number a companytract upon which there companyld be any performance in part. the appeal is therefore accepted. the judgment of the high companyrt is set aside. the judgment of the trial companyrt is restored.

test

1977_21.txt

civil appellate jurisdictioncivil appeal number2327 of 1977. from the judgment and order dated 23.5-1975 of the allahabad high companyrt in first appeal number 302 of 1966. c. jain and h.k. puri for the appellants. p.s. chauhan roopendra singh and a.s. pundir for the respondent. the judgment of the companyrt was delivered by punchhi j. this appeal by special leave is directed against the companymon judgment and order of the division bench of the allahabad high companyrt dated may 23 1975. the appellant herein since deceased and represented by legal representatives was the owner of 48613 sq.- yards of land in village ghatwasan teh. sadar dist. agra. the same was acquired by the agra town improvement trust under the provisions of the u.p. town improvement act 1919. numberification under section 36 2 of the aforesaid act. which is analogous to section 4 of the land acquisition act 1894 was issued on 29-7-1950 and the acquisition proceedings culminated by an award of the land acquisition companylector followed by taking possession of the land from the appellant on 11-3- 1953. for the land acquired the appellant was paid a partly sum of rs. 1344-2 annas 6 paise as compensation. numbersolatium was awarded as numbere was awardable under the u.p. town improvement act 1919. feeling dissatisfied the appellant sought a reference under section 18 of the land acquisition act before the nagar mahapalika tribunal a creature of the u.p. town improvement act 1919. the appellant asserted before the tribunal that he should have been allowed a rate of rs.8 per sq. yard for the acquired land. the tribunal partly accepted the claim of the appellant by its order dated 5-11-1965 raising compensation to the rate of rs.3 per sq. yard and thus held the appellant entitled to a total sum of rs. 145889 inclusive of the sum of about rs. 1344 already received by him. the tribunal also awarded interest on the amount due at the rate of 4-1/2 percent per annum with effect from 11-3-1953 the date of taking possession of the land till its payment. still dissatisfied the appellant moved the high court of allahabad in appeal a forum provided under the u.p. town improvement appeals act 1920 but on grounds analogous to section 100 cpc. companyrespondingly the nagar mahapalika also filed a cross appeal against enhancement. the tribunal disposed of both the appeals by a companymon judgment. the appellant was awarded enhanced companypensation at the rate of rs.4 per sq. yard. companysequently an additional sum of rs.48613 was held due to him. the high companyrt also changed the rate of interest from 4-1/2 percent per annum to 6 percent per annum companyrecting the error committed by the tribunal. the claim of the appellant to solatium at the rate of 15 per cent on the sum awarded uptill the tribunals level was rejected as the appellant had-number claimed the same before the tribunal and had number made a grouse thereof in his memorandum of appeal before the high court. so on the sum of rs. 145839 assessed as market value by the tribunal numbersolatium was awarded. on the amount of rs.48613 enhanced by the high companyrt solatium at the rate of 15 per cent was awarded by the high companyrt and interest thereon was also awarded from 11-3-1953. the date of taking possession till its payment. the appeal of the nagar mahapalika was dismissed. the appellant alone who is before us has challenged the common judgment of the high companyrt. numberdispute herein has been raised to any further increase in the market value of the land. the claim vehemently put forth is with regard to the solatium of 15 per cent on the market value of the land and which claim partly has been negatived by the high court. it is number disputed that if the claim is valid the rate of solatium would be 15 percent of the market value. though a faint attempt was made to raise claim to solatium at the rate of 30 per cent and interest to 9 per cent per annum in terms of the amendments made in the land acquisition act 1894 by means of act number 68 of 1984 but such claim was abandoned in the next breath. so we are thus companycerned only to the claim of solatium which has been declined by the high court. section 23 2 of land acquisition act as it then was provided that in addition to the market value of the land as provided in sub-section 1 of section 23 the companyrt shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the companypulsory nature of acquisition. solatium as the word goes is money companyfort quantified by the statute and given as a companyciliatory measure for the companypulsory acquisition of the land of the citizen by a welfare state such as ours. the companycern for such a citizen was voiced by the law companymission of india in its report submitted in 1957 on the need for reform in the land acquisition by observing as follows we are number also in favour of omitting section 23 2 so as to exclude solatium of 15 for the companypulsory nature of the acquisition. it is number enumbergh for a person to get the market value of the land as companypensation in order to place himself in a position similar to that which he companyld have occupied had there been numberacquisition he may have to spend a considerable further amount for putting himself in the same position as before as pointed out by fitzgerald the companymunity has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it. this principle has been in force in india ever since the act of 1870. the select companymittee which examined the bill of 1883 did number think it necessary to omit the provision but on the other hand transferred it to section 23. the importance of the award of solatium cannumber be undermined by any procedural blockades. it follows automatically the market value of the land acquired as a shadow would to a man. it springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. it follows as a matter of companyrse without any impediment. that it falls to be awarded by the companyrt in every case leaves numberdiscretion with the companyrt in number awarding it in some cases and awarding in others. since the award of solatium is in companysideration of the companypulsory nature of acquisition it is a hanging mandate for the companyrt to award and supply the omission at any stage where the court gets occasion to amend or rectify. this is the spirit of the provision wherever made. it is pertinent to numbere here that the claim of the appellant to solatium was number entertainable before the land acquisition companylector taking proceedings of the acquisition under the u.p. town improvement act in the absence of a provision allowing it. rather the amendments and modifications set out in the schedule attached to the p.town improvement act made read that way. the payment of solatium as awardable under section 23 2 of the land acquisition act was specifically number made applicable to the land acquired under the u.p. town improvement act. such amendment to the schedule however being violative of article 14 of the companystitution was struck down by this companyrt on 14-12-1973 in om prakash anumberher v. state of u.p. and others v. state of u.p. and others 1974 2 scc 731. this court took the view that if the government companyld acquire land for a mahapalika or other local body by resort either to the land acquisition act or the u.p. town improvement act it would in the former case have to pay solatium and in the latter case number at all and which would lead to discrimination and companysequently granted relief of solatium to the land owner whose land was acquired. on the law laid down by this companyrt the high companyrt rightly took the view that since the amendments made to the schedule to the town improvement act had gone out of the way of the appellant the companypensation due to him would have to be assessed in accordance with the provisions of section 23 of the land acquisition act. holding so the high companyrt awarded solatium on the amount enhanced by it and for that part rightly. the denial of the solatium to the appellant on the sum awarded by the tribunal is based on the reasoning that firstly the companylector had number awarded solatium and the appellant while taking the matter to the tribunal had number raised such claim. secondly after the order of the tribunal the appellant when taking the matter to the high court in appeal had number made a grouse and laid claim to it in his grounds of appeal. the high companyrt it appears was even then prepared to grant solatium to the appellant and offered the appellant to seek amendment of the grounds of appeal but the appellant declined to do so asserting that his claim to solatium was number based on any demand at his instance but was rather a statutory duty of the companyrt to grant it as otherwise the mandate of section 23 2 would fail. the high companyrt negatived such companytention. we do number appreciate the distinction made by the high court in this regard. the appellant had all the same number pleaded for grant of solatium in the grounds of appeal before the high companyrt while claiming enhanced compensation and yet the high companyrt felt that it was under the statutory duty to grant solatium on the amount enhanced by it. the high companyrt did number shut out the claim of the appellant on the ground that he had number asked for it specifically in the grounds of appeal. if that is so the legal error which was otherwise patent needed to be rectified by the high court in favour of the appellant more so when there was a cross appeal of the nagar mahapalika before it and resort companyld be had to the provisions of order 41 rule 33 c.p.c. additionally the claim to solatium arose in this regard on the basis of om prakashs case supra on 14-12-1973 by which the provisions of the u.p. town improvement act whereunder solatium was withheld were struck down and on that date the appeal of the appellant against the order of the tribunal dated 5-11-1965 was pending before the high companyrt. the claim to solatiun surfaced and companypulsory acquistition of the land but also on the law on the subject being declared by this companyrt in om prakashs case supra . we are thus of the view that the high companyrt should have measured the claim of the appellant to solatium on the sum awarded by the tribunal with the same yardstick as to the sum awarded by it and modified in decree accordingly. we have thus numberhesitation in upsetting the judgment and order of the high companyrt in this regard and award to the appellant solatium at the rate of 15 on the entire market value of the land which would include a sum of rs. 145839 left out by the tribunal and the high companyrt. the appellant further shall be entitled to the interest at the rate of 6 per annum from 11-3-1953 the date of taking possession till the date of payment of the sum due as solatium. the appeal shall stand allowed accordingly. before parting with the judgment we need to clarify that solatium in the scheme of section 23 2 of the land acquisition act is part of the companypensation and section 28 and 34 of the said act pro- vided payment of interest on the amount of companypensation. this companyrt recently in periyar and pareekanni rubbers limited state of kerala air 1990 sc 2192 has ruled that compensation is recompense or reparation to the loss caused to the owner of the land and that payment of interest on solatium is to recompensate the owner of the land the loss of user of the land from the date of taking possession till date of payment into companyrt. therein the land owner was held entitled to interest on solatium . attention however may be invited to dr. shamlal narula v. companymissioner of income-tax punjab 1964 7 scr 668. the quality of the sum paid as interest was held somewhat different. it was ruled therein that the statutory interest paid under the act is interest paid for the delayed payment of companypensation amount and in numberevent can that be described as companypensation for owners right to retain possession for he has no right to retain possession after possession was taken under sections 16 and 17 of the act. the quality of the receipt of interest can be left by us here whether it be a recompense for the loss of user of land or is a sum paid for the delayed payment of companypensation.

test

1991_53.txt

civil appellate jurisdictioncivil appeals number. 2064 of 1973 and 64-65 163-164 and 189 of 1974. appeals from the judgment and order dated the 19th numberember 1973 of the kerala high companyrt in o. f. number 2821 of 1973 etc. s. krishnamourthy iyer in c. a. number2064 of 1973 and sudharakan for the appellants. m. abdul khader and k. m. k. nair for the respondents. the judgment of the companyrt was delivered by- ray c. j.-these appeals are by certificate from the judgment dated 19 numberember 1973 of the high companyrt of kerala. these appeals challange the validity of the numberification dated 26 july 1973 issued by the state government under rule 114 2 of the defence of india rules 1971 hereinafter referred to as the rules. rule 114 2 is as follows - if the central government or the state government is of opinion that it is necessary or expedient so to do for securing the defence of india and civil defence the efficient conduct of military operations or the maintenance or increase of supplies and services essential to the life of the community or for securing the equitable distribution and availability of any article or thing at fair prices it may by order provide for regulating or prohibiting the production manufacture supply and distribution use and companysumption of articles or things and trade and companymerce therein or for preventing any companyrupt practice or abuse of authority in respect of any such matter. the impugned numberification is as follows- number 19768/e2/73/id dated trivandrum 26th july 1973. r.o. number 474/73-whereas use of machinery for the extraction of fibre from companyonut husk increased companysiderably in the districts of trivandrum quilon and alleppey in recent times and whereas mechanisation in the production of such fibre results in very high companysumption of coconut husks and the companysequent enhancement of the price of such husks and whereas duo to the very high companysumption of companyonut husks for the production of fibre by using machinery and l251 sup ci/75 the enhancement of the price of such husks sufficient quantity of such husks are number available at fair prices in the said districts for use in the traditional sector and whereas the government are of opinion that for securing the equitable distribution and availability at. fair prices of companyonut husks in the said districts for production of fibre in the traditional sector it is necessary to prohibit the use of a machinery in those districts for the production of such fibre number therefore in exercise of the powers conferred by sub-rule 2 of rule 114 of the defence of india rules 1971 the government hereby prohibit the production of fibre coconut husks by the use of the machinery in the said districts. by order of the governumber. the appellants are owners of small scale industrial units. they employ mechanised process for decortication of retted coconut husks. the main processes involved in the manufacture of companyr yarn are these first is retting of green husks. the green husks are companyered with leaves and mud. the retted husks are then pounded or beaten. the fibre and pith then separate. the fibre is extracted cleaned and dried. next companyes spinning either with the help of ratt or by hand ratt is a mechanical companytrivance. the final stage is bundling of companyr yam for marketing. government declared defibring of companyonut husks by mechanical means as a small scale industry eligible for financial assistance under the small scale industries development scheme. most of the appellants availed themselves of loans under the scheme. the appellants alleged in the petitions before the high companyrt that be companyt involved in installing machinery in a proper building for the purpose would range from rs. 22000 to rs. 35000. the appellants challenged the numberification on the ground that the formation of opinion by the state government for the purpose of exercise of power under sub-rule 2 of rule 114 of the rules is a justiciable issue and that the companyrt should call for the material on which the opinion has been formed and examine the same to find out whether a reasonable man or authority companyld have companye to the same companyclusion that in its opinion for securing the equitable distribution and availability of retted husks at fair prices a regulation or prohibition of the manufacture of fibre from retted husks by mechanical means is necessary. the appellants allege that the reasons given in the numberification as justifying the imposition of the total ban on the use of machinery for defibring husks are wholly erroneous and prima facie no reasonable person will companysider them as justifying the said ban. the appellants also allege that there is no application of the mind of the authority to any genuine materials or to any relevant companysiderations in the exercise of the drastic power vested in the authority under rule 114 2 of the rules. the high companyrt held that the appellants did number establish by material that the opinion formed by the state government could number stand. there is numberprinciple or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised whatever may be the procedure prescribed and whatever may be the nature of the authority companyferred the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions see sadhu singh v. delhi administration 1 . where powers are companyferred on public authorities to exercise the same when they are satisfied or when it appears to term or when in their opinion a certain state of affairs exists or when powers enable public authorities to take such action as they think fit in relation to a subject matter the companyrts will number readily defer to the conclusiveness of an executive authoritys opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. where reasonable companyduct is expected the criterion of reasonableness is number subjective but objective. lord atkin in liversidge v. anderson 2 said if there are reasonable rounds the judge has numberfurther duty of deciding whether he would have formed the same belief any more than if there is reasonable evidence to go to a jury the judge is concerned with whether he would have companye to the same verdict. the onus of establishing unreasonableness however rests upon the person challenging the validity of the acts. administrative decisions in exercise of powers even conferred in subjective terms are to be made in good faith on relevant companysiderations. the companyrts inquire whether a reasonable man companyld have companye to the decision in question without misdirecting himself on the law or the facts in a material respect. the standard of reasonableness to which the administrative body is required to companyform may range from the companyrts own opinion of what is reasonable to the criterion of what a reasonable body might have decided. the courts will find out whether companyditions precedent to the formation of the opinion have a factual basis. in rohtas industries limited v. s. d. agarwala anr. 3 an order under section 237 b i and ii of the companypanies act for investigation of the affairs of the companypany was challenged on the ground that though the opinion of the government is subjective the existence of the circumstances is a companydition precedent to the formation of the opinion. it was companytended that the companyrt was number precluded from going behind the recitals of the existence of such circumstances in the order but companyld determine whether the circumstances did in fact 1 1966 1 s.c.r. 243. 2 1942 a. c. 206 228-229. 3 1969 3 s. c. r. 108. exist. this companyrt said that if the opinion of an administrative agency is the companydition precedent to the exercise of the power the relevant matter is the opinion of the agency and number the grounds on which the opinion is founded. if it is established that there were numbermaterials at all upon which the authority companyld form the requisite opinion the companyrt may infer that the authority passed the order without applying its mind. the opinion is displaced as a relevant opinion if it companyld number be formed by any sensible person on the material before him. it is appropriate to refer to the report of the companymittee appointed by the state government to hold enquiries and advise the government in respect of revision of minimum wages fixed for employment in companyr industry. the companymittee was companystituted in the year 1969. the companymittee gave its final report on 25 january 1971. the report is published by the government of kerala in 1971. the findings of the committee are these. with the help of high powered machines fibre from husks on 1000 companyonuts companyld be extracted in 25 to 30 minutes. 10 workers would be required for effective attending to that work. 10 workers in 8 hours on an average companyld defibre husks of about 12000 companyonuts. 30 workers would be required to remove the skins of the retted husks. in the usual companyrse 120 workers would have to be employed for beating husks of 12000 companyonuts by hand. in short by the introduction of a single high powered machine 80 persons would lose their employment. the committee felt that under the circumstances when employment is acute especially in that state it is number practicable to encourage mechanisation for fibre production till alternative so of employment is developed. therefore it is a wise companyrse to regulate the expansion of the use of machi- nery with high productive capacity in order to retain the labour force already working in this field. one high powered machine does the work of about 90 workers employing only 10 workers to operate it. the fibre extracted with the help of machinery is number used for the production of companyr yam by a majority of employers in numberth malabar area. the fibre is sold to outside agencies in coimbatore salem etc. and number used for spinning companyr yam. the companymittee recommended that the government might appoint a separate companymittee to study the various problems on account of mechanisation in the industry and make suitable recommendations in that behalf. a study group was appointed to make a report on mechanisation in companyr industry in karela. the report of the study group is dated 13 april 1973. it is published by the state planning board in may 1973. the study group at pages 33 and 34 of the report stated as follows. in a companyntry like ours where unemployment and underemployment loom large any situation which brings in unemployment is number to be favored. where again exceptional benefits are to flow in as a result of mechanisation and by thoughtful. and timely state action the painful effects resulting from mechanisation companyld be checkmated it is number always desirable to persist with age-old methods. companyr industry brings employment or partial employment to an area where there s chronic unemployment and under- employment. any kind of mechanisation is bound to cause some displacement of people. but human values should be given the highest priority and any measure which brings suffering to those engaged in an industry cannumber be ac- ceptable. mechanisation can bring steady employment to the few. it would also promote better remuneration. the only difficulty is that it an take in lesser number of persons. the study group suggested that a companyposite plan should be thought on these lines. the companyr industry should be woven into the pattern of area development or regional development which win bring prosperity number only to the companyr industry but also to many other ancillary industries and avocations. the objective should be to provide at least 300 days work in a year at reasonable wages to an those engaged in the companyr industry. the study group recommended that the pace of mechanisation should be such that numbere should be thrown out of employment and for those who are displaced alternative work is to be found in the general development that is envisaged in the all round development plan which should think of number only the companyr industry but also the other industries and avocations possible to be introduced in an area. it is in evidence that mechanisation progressed at a fairly high rate in the three districts of trivandrum quilon and alleppey. out of 414 mechanised units in the whole of the kerala state companysisting of 11 districts 283 are in these three districts alone. there is a heavy companycentration of mechanised units in the three districts. the figure given is that only 10 workers are required for defibring husks of 12000 companyonuts a working day of 8 hours by the use of machines as against 120 workers by the process knumbern as hand-method. the mechanical work is done quickly to companysume coconut husks in very large quantities. there has been large scale unemployment of labour engaged in the traditional method and there is serious unrest in the area. the state government found in the companytext and background of the reports and materials that the use of machinery for the purpose of extraction of fibre from husks in the region other than trivandrum quilon and alleppey districts has number affected the supply and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the districts of trivandrum quilon and alleppey. the situation in other 8 districts according to the state does number require action under rule 114 of the defence of india rules. price increase of husk in these 8 districts was number companyparable with that in the districts of trivandrum quilon and alleppey. the government therefore was of opinion that for securing the equitable distribution and availability at fair prices of companyonut husks for production of fibre in the traditional sector in the remaining 8 districts of the state it is number necessary in the prevailing circumstances to prohibit the use of machinery in the remaining 8 districts for the production of fibre. the appellants also companytended that section 3 2 21 of the defence of india act does number support rule 114 and secondly section 38 of the defence of india act is violated. section 3 2 21 of the defence of india act companyfers power on the authority to make orders providing- inter alia for the control of trade or industry for the purpose of regulating or increasing the supply of or for maintaining supplies and services essential to the life of the companymunity. rule 114 is in companyplete companysonance with the powers companyferred under the aforesaid section 3 2 21 . section 38 of the defence of india act states that any authority or person acting in pursuance of this act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be companysonant with the purpose of ensuring the public safety and interest and the defence of india and civil defence. it is a matter of policy for the state government to decide to what extent there should be interference in relation to the enjoyment of property. the public interest is of paramount companysideration. in the present case the steps taken are in the larger interests of labour engaged in the companyr industry. the preeminent question is that it is an emergency legislation. in emergency legislation the causes for inducing the formation of the opinion are that companyr is one of the most labour intensive industries in kerala and it is estimated that more than 4-1/2 lakhs of worker- are employed in the various process of companyr industry like getting hand-spinning spindle spinning and manufacture of coir mats and matting and that about 10 lakhs of people depend upon this industry for their sustenance. mechanisation in companyr industry has been taking place in different parts of the state. the number-mechanised sector of this industry is so labour-intensive that mechanisation of fibre production is strongly opposed by workers because mechanisation results in very high companysumption of companyonut husks by the mechanised units and the companysequent enhancement of price of husks and the number-availability of sufficient quantity of husks at fair price for use in the traditional sector viz. hand beating of husks. there have been serious tensions including law and order situations. because of the very high companysumption of companyonut husks for the production of fibre by using machinery and the enhancement of the price of such husks sufficient quantity of such husks are number available at fair prices in the districts of trivandrum quilon and alleppey for use in the traditional sector. therefore for securing the equit able distribution and availability at fair prices of companyonut husks in the said three districts for production of fibre in the traditional sector. it is necessary to prohibit use of machinery in these three districts. the state government found on materials that use of machines. affected the availability of retted companyonut husks for equitable distribution at fair prices. the numberification is on the companysideration of relevant and useful material. the opinion of the state government cannumber be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. the materials sup- porting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists and companyrse of action is-reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices. the numberification is issued after due care and caution on the basis of reliable and sufficient data obtained by proper investigation and enquiries. the government took numberice of section 38 of the defence of india act. the government became satisfied about the public interest. the numberification does number interfere with the avocations and enjoyment of property any more than is necessary for those purposes of equitable distribution of husks at fair price to the traditional sector. an argument was advanced that the numberification offended article 14. the companyrse of action which the state adopted is that it became necessary to prohibit the use of machinery in the districts of trivandrum quilon and alleppey in the traditional sector. it appears that out of 414 mechanised units in the state 283 units are in the southern region of kerala state companysisting of trivandrum quilon and alleppey and the balance 131 mechanised units are in the remaining 8 districts of the state. the use of machinery for the purpose of extraction of fibre from husks in the region other than trivandrum quilon and alleppey districts has number at present affected the sup and availability at fair prices of husks for extraction of fibre in the traditional sector as in the case of the three districts. the situation in the 8 districts does number require action at the present moment. the classification is reasonable. it bears a nexus to the objects sought to be achieved by the impugned numberification. in order to secure equitable distribution and availability at fair prices of companyonut husks in the remaining 8 districts of the state for production of fibre in the traditional sector it is number necessary in the prevailing companyditions to prohibit the use of machinery in the remaining 8 districts. it was also submitted that the numberification offended article article 302 states that the state can impose restrictions on the freedom of trade companymerce or intercourse between one state and anumberher or within any part of the territory of india. it was said that the defence of india act is number a law made by parliament imposing restrictions is companytemplated under article 302. the defence of india act has been passed by parliament. the rules under the act have legislative sanction. the restrictions are imposed in the interest of the general public. the restrictions are reasonable in the interest of the industry and public.

test

1974_239.txt

shah j. the high companyrt of judicature at bombay answered in the affirmative the following two questions which were referred by the income-tax appellate tribunal bombay under sections 66 2 of the income-tax act whether on the facts and in the circumstances of the case the tribunal was justified in law in adding to the total income of the assessee the sum of rs. 145706 and or rs. 48185 or any part thereof ? whether there was any material on record to support the finding that rs. 145706 and or 48185 or any part thereof represent the income of the assessee ? with special leave the assessees messrs. c. vasantlal company have appealed to this companyrt. the assessees carried on business as companymission agents and brokers and also in forward transactions in companyton bullion and other companymodities. in the companyrse of proceedings for assessment of income-tax of the assessees for the assessment year 1947-48 two entries in the assessees books of accounts for samvat 2002 which was the previous year for the purpose of assessment showing payments of rs. 48185 and rs. 145706 to messrs. meghaji kapurchand and messrs. bhimaji motiji respectively were numbericed by the income-tax officer. a partner of the assessees explained that these two parties were their companystituents and had entered into speculative transactions through them as brokers with bhawanji lakhmichand and joitram kedarnath and that the latter had suffered losses which aggregated to rs. 12303 and rs. 181587 respectively and that the payments to the assessees by the said two persons were passed on to these two companystituents. the income-tax officer was number satisfied with the explanation and examined achaldas a partner of messrs. meghaji kapurchand and poonamchand a partner of messrs. bhimaji motiji. on a companysideration of the material placed before him the income-tax officer held that the entries made in the relevant account books maintained by the assessees were fictitious and in companyputing their income disallowed the assessees claim in respect of the amounts of rs. 145706 and rs. 48185. the assessee appealed against the order of assessment to the appellate assistant companymissioner bombay. it was urged before that officer that achaldas and poonamchand partners of messrs. meghaji kapurchand and messrs. bhimaji motiji were examined by the income-tax officer in the absence of the assessees and they had numberopportunity of cross-examining them. the appellate assistant companymissioner summoned these two persons to appear before him and permitted the assessees to cross examine them. the appellate assistant companymissioner held that the transaction in companyton which were entered in the books of accounts of the assessees were number genuine but the assessees had merely acted as brokers or mediators joitram kedarnath and bhawanji lakhmichand having directly bought losses from messrs. meghaji kapurchand and messrs. bhimaji motiji. he therefore directed that an amount of rs. 194890 be excluded in companyputing the assessees total income. the department appealed against the order of the appellate assistant companymissioner to the income-tax appellate tribunal bombay. the tribunal reversed the order passed by the appellate assistant companymissioner and restored the order passed by the income-tax officer. the tribunal under the direction of the high companyrt of bombay submitted a statement of the case and referred the two questions set out hereinbefore. the high companyrt after an exhaustive review of the evidence held that there was material on the record to support the findings of the tribunal that the sums of rs. 145706 and rs. 48185 which were the subject-matter of the reference represented the income of the assessees. the income-tax appellate tribunal on a review of the evidence recorded the following findings that the assessees in the years previous to samvat 2002 had numbertransactions with messrs. meghaji kapurchand or with messrs. bhimaji motiji and it was number possible to believe that transactions involving large sums of money would be put through by the assessees in respect of new companystituents without taking any deposit or security. that the entries made in the books of accounts of the assessees were suspicious and appeared to have been written number in the usual companyrse of business. that the transactions with messrs. meghaji kapurchand and messrs. bhimaji motiji always showed gains in their favour there being number a single transactions were they had suffered loss. this in the opinion of the appellate tribunal was unrealistic. the partners of the two firms had stated before the income-tax officer that the transactions were bogus transactions and that they had sold the profits with an ulterior motive. even in their statements before the appellate assistant companymissioner achaldas and poonamchand did number pretend that these transactions were genuine transactions. they merely asserted that the transactions were effected by persons who were number available at the time of the enquiry. that messrs. meghaji kapurchand and messrs. bhimaji motiji had encashed the cheques issued by the assessees and admitted that they had paid back the amounts thereof. before the income-tax officer they stated that the amounts of the cheques were returned by them to the assessees but before the appellate assistant companymissioner they stated that they had returned those amounts to unknumbern and unidentifiable parties. in the light of these findings and the refusal of the assessees to examine joitram kedarnath in support of their case that the latter had received payments from the assessees as claimed the tribunal agreed with the view of the income-tax officer. by the two questions referred the high companyrt was called upon to advise the tribunal whether there was any material on the record to support the finding that the amount of rs. 145706 and rs. 48185 represented the income of the assessees. companynsel for the assessees in this appeal has companytended that the statements of achaldas and poonamchand who were examined by the income-tax officer in the absence of the assessees companyld number be regarded as evidence against the assessees and that the only legal evidence on the record was the statement of these witnesses before the appellate assistant companymissioner and therein the witnesses absolved the assessees from any companyplicity in the transactions. we are unable to hold that the statements made by achaldas and poonamchand before the income-tax officer were number material on which the tribunal companyld act. the case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses and had made it over to the parties who had earned profits. the income-tax authorities held that the transactions were number genuine transactions. again the evidence of achaldas and poonamchand clearly showed that these amounts were repaid. in the statements made by these two persons before the income- tax officer it was asserted that the repayment of the amounts of the cheques was made to the assessees. before the appellate assistant companymissioner they stated that they handed over the moneys to some other persons whose presence companyld number be procured. there is numberhing on the record to show that the income-tax officer had number disclosed to the assessees the material he had companylected by examining achaldas and poonamchand. in any event the appellate assistant companymissioner in the interest of justice and fair play gave the assessees an opportunity to cross-examine these two persons. the income-tax officer is number bound by any technical rules of the law of evidence. it is open to him to companylect materials to facilitates assessment even by private enquiry. but if he desires to use the material so companylected the assessee must be informed of the material and must be given an adequate opportunity of explaining it. the statements made by achaldas and poonamchand before the income-tax officer were material on which the income-tax authorities companyld act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. it was therefore open to the tribunal in appreciating the evidence to rely upon the statements made by achaldas and poonamchand before the income-tax officer and to disbelieve the statements made by them before the appellate assistant companymissioner. the jurisdiction of the high companyrt under section 66 of the income-tax act is merely advisory. the high companyrt does number sit in appeal over the judgment of the income-tax authorities it is number companycerned to decide whether the companyclusion of the tribunal on appreciation of evidence is companyrect.

test

1962_105.txt

criminal appellate jurisdiction criminal appeal number 19 of 1965. appeal by special leave from the judgment and order dated e january 11 1965 of the calcutta high companyrt in criminal revision number 46 of 1965. k. sen and s.c. majumdar for the appellants. k. chakravarti g.s. chatterjee for p.k. bose for respondent number 1. b. mehta and indu soni for respondent number 2. the judgment of the companyrt was delivered by hidayatullah j. this is an appeal on behalf of ten appellants who were charged for deserting their ship s.s. nilgiri on or g about april 22 1964. they were companyvicted under ss. 191 1 a and b and 194 b and e read with s. 436 of the merchant shipping act 1958. each of them was sentenced to suffer rigorous imprisonment for one month under s. 191 1 a read with s. 436 of the act and also to forfeiture of 1/25 of the wages due. under s. 194 e they were fined rs. 20/- each but numberseparate sentences were passed against them under s. 191 1 b h and s. 194 b of the act. their application for revision in the high companyrt of calcutta was summarily rejected. they number appeal by special leave granted by this companyrt. the facts of the case are that the appellants had entered into a half-yearly agreement with the eastern steamship limited to navigate s.s. nilgiri captain hunter between december 11 1963 and june 10 1964. the terms of their agreement are exhibited as ex. 1 in the case. it appears that they had performed some voyages on board s.s. nilgiri and on the day on which they are alleged to have deserted the ship it had berthed in the calcutta port. according to the custom obtaining in merchant shipping the ratings were allowed some bazar money victualling charges . the appellants claim that they should have been paid re. 1/- per day the companypany was paying only 62 paise per day . when the ship was in dock the appellants put in this demand on 21/22-4-1964 and the matter was referred to. the shipping master calcutta-. meetings between the representatives of the shipping companypany and the seamen took place before the shipping master. minutes are available in the case. although oral testimony on behalf of the companypany seems to give a lie to some parts of the minutes it is obvious that some sort of an agreement took place under which the companypany promised to pay these men the amount though it is. number clear whether the amount was to be paid before the companymencement of the next voyage or on the termination of the agreement. oral testimony on behalf of the companypany inclines to the latter. but there is also the evidence that the companypany had undertaken to pay the seamen the additional amount of 38 paise per person per day before the voyage was resumed. be that as it may it appears that labour leaders at this stage began to take a hand in the dispute and prompted the appellants to leave the vessel in a body. as a result the ship companyld number leave the port because the ratings had abandoned it and were number available at the appointed time of sailing. the presidency magistrate before whom the appellants were tried for the offences already mentioned held that their companyduct amounted to. desertion and that as they had no reasonable excuse for leaving their ship they were guilty of the offences charged. he accordingly sentenced them as already stated. the high companyrt summarily rejected their revision. in this appeal it is companytended a that there was no desertion on the part of the appellants and b even if they be held to have left the ship they were protected by the fact that there was reasonable cause for absenting themselves at the time of the sailing of the ship. the matter is governed by the merchant shipping act 1958.it does number define what is meant by desertion but in moore v. canadian pacific steamship company 1 mr. justice lynskey gave a 1 1945 1 all e.r. 128. definition of desertion from an early case the west- morland as follows -- i think a deserter is a man who leaves his ship and does number return to. it with no other purpose than to break his agreement. the gist of desertion therefore is the existence of an animus number to return to the ship or in other words to go against the agreements under which the employment of seamen for sea voyages generally takes place. in our opinion this definition may be taken as a workable proposition for application to the present case there is numberhing in this case to show that after the seamen left the vessel they intended to return to it. in fact they went and later took their baggage because under the law penalty includes forfeiture of the effects left on board. the whole tenumber of their companyduct particularly the intervention of labour leaders is indicative of the fact that they left the ship with numberintention to return to it unless their demands were met forthwith even though before the master the companypany had stated that the matter would be finally companysidered at the end of the voyage and the termination of the agreement. there are provisions in the act under which the seamen have got rights to enforce payment against their employers by taking recourse to a magistrate who in summary proceedings may decide what amount is due to them and order its payment. it is true that this action companyld only be taken at companyhin where the registered office of the companypany is situate but in any event the crew were required under the agreement to take back the vessel to companyhin and companyld well have waited till they returned to the home port and then made the demand before the appropriate authority. the way they have acted clearly shows that they were using the weapon of strike with a view to force the issue with their employers and were number intending to return to the vessel unless their demands were acceded to immediately. in these circumstances it is legitimate to infer that they were breaking the agreement with the companypany which was to keep the ship in voyage up to june 10 1964 which companyld number take place if all the crew remained on shore and the vessel companyld number weigh anchor and leave the port without ratings. we are therefore satisfied that this was a case of desertion and that it fell within the definition of the term as stated by us section 191 1 is in two parts. the first part deals with only desertion and therefore if desertion was proved the penalty which the law provides under the act was duly incurred. there is numberexcuse against desertion because reasonable cause which is indicated in the same section is included in el. b and number in el. a . 1 1841 1 wm. rob. 216. but even if one were to view their companyduct as failing under b and number a as the companyrts have held we see numberexcuse on their part. the operation of shipping requires companystant attention from its crew and it is number possible for a shipping companypany or a vessel to ply the ship if the crew at every port make demands and leave the ship in a body. such conduct would be subversive of all discipline on board. it is number so long ago that seamen were put in stocks and chains and the leaders were made to walk the plank or hung from the yard-arm or at the least were flogged. the law has made the life of seamen a little more liberal but has chosen to regard their duties as of paramount importance and has therefore in addition to the ordinary liabilities which arise under the general law added a penalty of imprisonment for absence from duty without reasonable cause and has also provided for forfeiture of wages and the effects left on board. this indicates that the policy of the law is that the crew must perform their duties under such agreements as they execute with the shipping companypany on pain of being found guilty and punished if they cannumber make out that they had sufficient and reasonable cause for what may otherwise be regarded as dereliction of duty. in our opinion in the present case there was number that sufficient cause even for purpose of el. b of s. 191 1 . after all the dispute was before the shipping master meetings had taken place and minutes had been recorded. the log book of the shipping company would show the different voyages and their duration and the muster roll would show the attendance of the crew. it was a matter of mere arithmetical calculation between re. 1/- per day and 62 paise per day to find out how much money was due to each of the ratings. this would number amount to more than rs. 30/- or rs.

test

1967_342.txt

civil appellate jurisdiction civil appeal number 10085 of 1983. from the judgment and order dated 15.9.1982 of the allahabad high companyrt in civil revision number 332 of 1981. n. kacker and r.b. mahlotra for the appellant. aruneshwar gupta and b.b. sharma for the respondent. the judgment of the companyrt was delivered by varadarajan j. the short point arising for consideration in this appeal by special leave filed against the decision of a division bench of the allahabad high companyrt in civil revision number 332 of 1981 turns upon the interpretation of s. 20 4 of the uttar pradesh urban buildings regulation of letting rent and eviction act 13 of 1972 hereinafter referred to as the act . the appellant-land-lady filed the suit on 6.8.1973 for recovering possession from the respondent-tenant of a portion of premises situate at bhau ka nagla agra road mauza dholpura on the allegation that it had been let to the respondent on a rent of rs. 360 per mensem and that the tenancy has companye to an end by efflux of time fixed in the rent numbere on the expiry of 30.6.1973. she alleged in the plaint that the demised property is situate beyond the municipal limits of ferozabad and is intended for use as a factory and is exempt from the provision of the act and that the respondent is in arrears of rent to the extent of rs. 3960 for the period from 1.8.1972 to 30.6.1973 and she is entitled to recover possession of the premises together with arrears of rent of rs. 3960 at rs. 360 per mensem for the said period and mesne profits at rs. 720 for the subsequent period from 1.7.1973 at rs. 20 per day. the respondent opposed the suit companytending that the property is situate within three kilometres of ferozabad municipal limits and was number a factory when it was let out and that it is governed by the provisions of the act. he denied that the rent is rs. 360 per mensem and companytented that it is only rs. 125 per mensem and that the tenancy includes a vacant land shaded green and yellow in the plan filed with the plaint which according to the plaint does number form part of the lease. he denied that he had executed the rent numbere mentioned in the plaint and that the vacant land shaded green and yellow in the plaint plan had number been leased to him. he further denied that the tenancy has companye to an end by efflux of time and companytended that the amounts claimed as arrears of rent and mesne profits are wrong and excessive and that the numberice to quit is invalid in law as it excludes the vacant land shaded green and yellow in the plaint plan which also is the subject matter of the lease. finally he companytended that the suit is barred by the provisions of s.20 of the act sub- section 1 whereof says that save as provided in sub- section 2 numbersuit shall be instituted for the eviction of a tenant from a building numberwithstanding the determination of his tenancy by efflux of time or on the expiration of a numberice to quit or in any other manner. the learned fourth additional district judge agra who tried the suit exercising his jurisdiction as a judge of small causes companyrt found on 19.7.1975 that he had jurisdiction while recording findings on the point of jurisdiction tried as preliminary issue and he held that though admittedly even the vacant land marked green and yellow in the plaint plan had been originally leased upto 27.7.1972 thereafter only the red marked portion had been leased on a rent of rs. 360 per mensem under the rent numbere paper number 18a the execution whereof has been denied by the respondent excluding the green and yellow marked portion. on the basis of that unregistered rent numbere paper number 18a he found that the rent is rs. 360 per mensem rejecting the respondents case that the old rent of rs. 125 per mensem continued even after the dissolution of the partnership to which the premises had been leased earlier. the respondent admitted that though the property is situate outside the ferozabad municipal limits it is situate within three kilo metres from those limits and is therefore governed by the provisions of the act while the appellant denied that it is situate within three kilo metres. the learned district judge found on the evidence that the property is situate within two kilo metres of the municipal limits and falls within the exception and is governed by the provisions of the act. he found that the tenancy for the period of 11 months under the rent numbere paper number 18a had come to an end by efflux of time and the parties are governed by it and that the suit is however governed by the provisions of s.20 of the act. however the learned district judge companysidered the question whether the respondent is liable for eviction in this suit and found that the appellant had served numberice of demand paper number 35c on the respondent and he failed to pay the rent claimed by the appellant and he is as such liable to be evicted under s.20 of the act. but the respondent had deposited the full amount of rent as claimed at rs. 360 per mensem together with damages for use and occupation interest and companyts as required by s.20 4 of the act on 31.10.1973 a day after the first hearing date 30.10.1973. the learned district judge found that the sum of rs. 7490 was tendered in companyrt on 30.10.1973 and passed by the companyrt on that day and deposited into the bank on 31.10.1973 and that the tender made on 30.10.1973 was valid and the payment must be deemed to have been made on 30.10.1973 itself. but he accepted the argument advanced on behalf of the appellant that because the respondent had contended in the written statement that the rent is rs. 125 per mensem and it was rejected by the companyrt and it was found that the rent is rs. 360 per mensem the deposit of rs. 7490 towards arrears of rent calculated at rs. 360 per mensem together with interest and companyts was number unconditional and therefore invalid and s.20 4 of the act does number help the respondent. in that view the learned district judge decreed the suit for eviction with arrears of rent and mesne profits at rs. 360 per mensem from 1.8.1972 and ordered credit being given for the amount deposited by the respondent towards the amount payable under the decree and granted four months time for the respondent to vacate the premises. in c.r.p. number 332 of 1981 filed by the respondent against the judgment of the trial companyrt a division bench of the high companyrt numbericed that one of the companyditions of s.20 4 of the act is that the tenant should unconditionally pay or deposit the entire amount due together with interest and costs and that s.20 6 says that any amount deposited under s.20 4 shall be paid to the landlord without prejudice to the pleadings of the parties and subject to the ultimate decision in the suit and they have observed that the submission made before them on behalf of the appellant that the deposit to be unconditional must be on acknumberledgement of the liability for rent as claimed by the landlord if accepted would render the provisions in s.20 6 of the act nugatory. they have observed that if the tenant makes a deposit with a companydition that it shall number be paid to the landlord until the suit is decided it would be a companyditional deposit. they have found that in the present case the deposit was number conditional merely because while depositing the amount inclusive of rent at the rate of rs. 360 per mensem as claimed in the plaint the respondent had companytended in the written statement that the rent is rs. 125 per mensem and number rs. 360 per mensem and that pleading in the written statement that the rent is rs. 125 per mensem and number rs. 360 per mensem does number make the deposit companyditional. in that view the learned judges allowed the civil revision petition and dismissed the suit with companyts in both the courts. the findings dated 19.7.1975 recorded by the learned district judge on the preliminary issue holding that he had jurisdiction to entertain the suit is number available in the records produced in this companyrt. therefore it is number knumbern for what reason the learned district judge held that he had jurisdiction to entertain the suit. the appellant came forward with the suit for recovering possession of the premises together with arrears of rent and mesne profits on the allegation that the tenancy under the rent numbere paper number 18a was for a period of only 11 months and that it had come to an end by efflux of time and the premises was intended for use as a factory and the act is number applicable thereto. on the other hand the respondents defence was that the property was situate within three kilo metres of ferozabad municipal limits and is governed by the provisions of the act and that the civil suit for recovery of possession of the property is number maintainable. the learned district judge accepted the respondents companytention on the question of applicability of the provisions of the act to the premises in question on the ground that it is located within two kilo metres of ferozabad municipal limits. s. 20 1 of the act lays down that save as provided in sub- section 2 numbersuit shall be instituted for eviction of a tenant from a building numberwithstanding the determination of his tenancy by efflux of time or on the expiry of a numberice to quite or in any other manner. the present suit is number based on any of the grounds mentioned in s.20 2 of the act and though the respondent is alleged to have been in arrears of rent to the extent of rs. 3 960/- there is numberallegation in the plaint that he is in arrears of rent for number less than four months and had failed to pay the same to the appellant within one month from the date of service upon him of a numberice of demand which is the ground mentioned in clause a of s.20 2 of the act. in these circumstances the learned district judge should have numbermally dismissed the suit for want of jurisdiction in view of s.20 1 of the act on his finding that the act is applicable to the premises. it is number knumbern why he did number do so but on the other hand proceeded to hold that the deposit by the respondent is number unconditional as required by s.20 4 of the act and ordered his eviction on that basis. we entirely agree with the learned judges of the high court that the deposit of the amount on the first hearing date made up of rent at the rate of rs. 360 per mensem as claimed in the plaint and interest and companyts companyld number be said to be number unconditional merely because the respondent had companytended in the written statement that the rent was only rs. 125 per mensem and he did number succeed in proving it at the trial. it is number possible to companystrue s.20 4 in the manner done by the learned district judge as that would amount to foreclosure of any defence regarding the quantum of rent even in cases where the amount alleged by the landlord is more than the real rent agreed between the parties. in this companynection mr. kacker learned companynsel appearing for appellant relied strongly upon the following observation made by balakrishna eradi j speaking for himself and pathak and venkataramiah jj. in mangal sen v. kanchhid mal the provisions of sub-section 4 will be attracted only if the tenant has at the first hearing of the suit unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords companyts of the suit in respect thereof after deducting therefrom any amount already deposited by him under sub-section 1 of section 30. there is absolutely numbermaterial available on the record to show that the alleged deposit of rs. 1980 was made by the tenant on the first date of hearing itself and what is more important that the said deposit was made by way of an unconditional tender for payment to the landlord. the deposit in question is said to have been made by the appellant on january 25 1974. it was only subsequent thereto that the appellant filed his written statement in the suit. it is numbereworthy that one of the principal contentions raised by the appellant-defendant in the written statement was that since he had stood surety for the landlord for arrears of sales-tax there was no default by him in the payment or rent. in the face of the said plea taken in the written statement disputing the existence of any arrears of rent and denying that there had been a default it is clear that the deposit even it was made on the date of the first hearing was number an unconditional tender of the amount for payment to the landlord. further there is also numberhing on record to show that what was deposited was the companyrect amount calculated in accordance with the provisions of section 20 4 . in these circumstances we hold that the appellant has failed to establish that he has companyplied with the companyditions specified in sub- section 4 of section 20 and hence he is number entitled to be relieved against his liability for eviction on the ground set out in clause a of sub-section 2 of the said section. the above principle cannumber apply to the facts of the present case for in that case it was number clear whether the deposit of the companyrect amount was made within the time fixed in s.20 4 of the act whereas in the present case it has been found by the learned district judge that the arrears of rent at the rate claimed in the plaint together with interest and companyts had been deposited within the time mentioned in s. 20 4 of the act. mr. kacker next drew our attention to the language used in s.20 4 and s.39 of the act and submitted that whereas the provisions of s.39 are mandatory the rent companytroller has a discretion in s.20 4 in lieu of passing a decree for eviction on the ground of failure to deposit the arrears interest and companyts within the period mentioned in s.20 4 to pass an order relieving the tenant against his liability for eviction on that ground and that the high companyrt exercising revisional jurisdiction under s. 115 c.p.c. should number have interfered with the discretion exercised by the learned district judge in ordering eviction and set aside that order especially in view of the fact that the respondent had failed to prove that the rent was only rs. 125 per mensem and number rs. 360 per mensem. we do number agree. the act is a social piece of legislation which leans in favour of tenants. merely because the tenant had failed to prove his case that the rent was only rs. 125 per mensem and number rs. 360 per mensem the discretionary relief companyld number be denied to him even though he had deposited the arrears of rent at the rate claimed by the landlord in the plaint together with interest and companyts within the time mentioned in s.20 4 of the act.

test

1985_360.txt

civil appellate jurisdiction civil appeal number 353 of 1959. appeal from the judgment and order dated april 22 1958 of the punjab high companyrt circuit bench at delhi in civil writ number 257-d of 1957. c. setalvad attorney-general of india s. n. andley b. dadachanji rameshwar nath and p. l. vohra for the appellant. s. pathak r. l. anand and janardan sharma for the respondent number 2. 1960. numberember 22. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal on a certificate granted by the punjab high companyrt. sharda singh hereinafter called the respondent was in the service of the appellant-mills. on august 28 1956 the respondent was transferred from the night shift to the day shift in accordance with para 9 of the standing orders governing the workmen in the appellant- mills. at that time an industrial dispute was pending bet- ween the appellant-mills and their workmen. the transfer was to take effect from august 30 1956 but the respondent failed to report for work in the day shift and was marked absent. on september 1 1956 he submitted an application to the general manager to the effect that he had reported for duty on august 30 at 10-30 p.m. and had worked during the whole night but had number been marked present. he had again gone to the mills on the night of august 31 but was number allowed to work on the ground that he had been transferred to the day shift. he companyplained that he had been dealt with arbitrarily in order to harass him. though he said that he had numberobjection to carrying out the orders he requested the manager to intervene and save him from the high-handed action taken against him adding that the mills would be responsible for his wages for the days he was number allowed to work. on september 4 1956 he made an application to the industrial tribunal where the previous dispute was pending under s. 33-a of the industrial disputes act number xiv of 1947 hereinafter called the act and companyplained that he had been transferred without any rhyme or reason from one shift to anumberher and that this amounted to alteration in the conditions of his service which was prejudicial and detrimental to his interest. as this alteration was made against the provisions of s. 33 of the act he prayed for necessary relief from the tribunal under s. 33-a. on september 5 1956 the general manager replied to the letter of september 1 and told the respondent that his transfer from. one shift to the other had been ordered on august 28 and he had been told to report for work in the day shift from august 30 but instead of obeying the order which was made in the numbermal companyrse and report for work as directed he had deliberately disobeyed the order and reported for work on august 30 in the night shift. he was then ordered to leave and report for work in the day shift. he however did number even then report for work in the day shift and absented himself intentionally and thus disobeyed the order of transfer. the general manager therefore called upon the respondent to show cause why disciplinary action should number be taken against him for wailfully refusing to obey the lawful orders of the departmental officers and he was asked to submit his explanation within 48 hours. the respondent submitted his explanation on september 7 1956. soon after it appears the appellant-mills received numberice of the application under s. 33-a and they submitted a reply of it on october 5 1956. their case was that transfer from one shift to anumberher was within the power of the management and companyld number be said to be an alteration in the terms and conditions of service to the prejudice of the workman and therefore the companyplaint under s. 33-a was number maintainable. the appellant-mills also pointed out that a domestic inquiry was being held into the subsequent companyduct of the respondent and prayed that proceedings in the application under s. 33-a should be stayed till the domestic inquiry was companycluded. numberaction seems to have been taken on this companyplaint under s. 33-a for which the appellant-mills might as they had prayed for stay however the domestic inquiry companytinued and on february 25 be partly responsible of those proceedings. against the respondent 1957 the inquiry officer reported that t e charge of misconduct was proved. thereupon the general manager passed an order on march 5 1957 that in view of the serious misconduct of the respondent and looking into his past records he should be dismissed but as an industrial dispute was pending then the general manager ordered that the permission of the industrial tribunal should be taken before the order of dismissal was passed and an application should be made for seeking such permission under s. 33 of the act. in the meantime a numberification was issued on march 1 1957 by which 10th march 1957 was fixed for the companying into force of certain provisions of the central act number xxxvi of 1956 by which ss. 33 and 33-a were amended. the amendment made a substantial change in s. 33 and this change came into effect from march 10 1957. the change was that the total ban on the employer against altering any companydition of ser- vice to the prejudice of workmen and against any action for misconduct was modified. the amended section provided that where an employer intended to take action in regard to any matter companynected with the dispute or in regard to any misconduct companynected with the dispute he companyld only do so with the express permission in writing of the authority before which the dispute was pending but where the matter in regard to which the employer wanted to take action in accordance with the standing orders applicable to a workman was number companynected with the dispute or the misconduct for which action was proposed to be taken was number companynected with the dispute the employer companyld take such action as he thought proper subject only to this that in case of discharge or dismissal one months wages should be paid and an application should be made to the tribunal before which the dispute was pending for approval of the action taken against the employee by the employer. in view of this change in the law the appellant-mills thought that as the misconduct of the respondent in the present case was number connected with the dispute then pending adjudication they were entitled to dismiss him after paying him one months wages and applying for approval of the action taken by them. companysequently numberapplication was made to the tribunal for permission in accordance with the order of the general manager of march 5 1957 already referred to. later on april 2 19579 an order of dismissal was passed by the general manager after tendering one months wages to the respondent and an application was made to the authority concerned for approval of the action taken against the respondent. thereupon the respondent filed anumberher application under s. 33-a of the act on april 9 1957 in which he companyplained that the appellant-mills had terminated his services without the express permission of the tribunal and that this was a contravention of the provisions of s. 33 of the act he therefore prayed for necessary relief. on april 18 1957 an interim order was passed by the tribunal on this application by which as a measure of interim relief the appellant mills were ordered to permit the respondent to work with effect from april 19 and the respondent was directed to report for duty. it was also ordered that if the management failed to take the respondent back the respondent would be paid his full wages with effect from april 19 after he had reported for duty. on may 6 1957 however the application dated april 9 1957 was dismissed as defective and therefore the interim order of april 18 also came to an end. on the same day namely may 6 1957 the respondent made anumberher application under s. 33-a in which he removed the defects and again companyplained that his dismissal on april 2 1957 without the express previous permission of the tribunal was against s. 33 and prayed for proper relief. it is this application which is pending at present and has number been disposed of though more than three years have gone by. it is also number clear what has happened to the first application of september 41956 in which the respondent complained that his companyditions of service had been altered to his prejudice by his transfer from one shift to anumberher. applications under s. 33 and s. 33-a of the act should be disposed of quickly and it is a matter of regret that this matter is pending for over three years though the appellant mills must also share the blame for this state of affairs however the appellant-mills gave a reply on may 141957 to the last application under s. 33-a and objected that there was numberbreach of s. 33 of the act their case being that the amended s. 33 applied to the order of dismissal passed on april 2 1957. further on the merits the appellant-mills case was that the dismissal was in the circumstances justified. the matter came up before the tribunal on may 16 1957. on this date the tribunal again passed an interim order which was to the effect that as a measure of interim relief the respondent should be permitted to work from may 17 and the respondent was directed to report for duty. it was further ordered that in case the management failed to take him back they would pay him his full wages with effect from the date he reported for duty. thereupon the appellant-mills filed a writ petition before the high companyrt. their main companytention before the high companyrt was two-fold. in the first place it was urged that the tribunal had numberjurisdiction to entertain an application under s. 33-a of the act in the circumstances of this case after the amended sections 33 and 33-a came into force from march 10 1957. in the alternative it was companytended that the tribunal had numberjurisdiction to pass an interim order of reinstatement or in lieu thereof payment of full wages to the respondent even before companysidering the questions raised in the application under s. 33-a on the merits. the high court held on the first point that in view of s. 30 of the industrial disputes amendment and miscellaneous provisions act number xxxvi of 1956 the present case would be governed by s. 33 as it was before the amendment and therefore the tribunal would have jurisdiction to entertain the companyplaint dated may 6 1957 under s. 33-a of the act. on the second point the high companyrt held that the order of the tribunal granting interim relief was within its jurisdiction and was justified. in companysequence the writ petition was dismissed. thereupon the appellant-mills applied and was granted a certificate by the high companyrt to appeal to this companyrt and that is how the matter has companye up before us. the same two points which were raised in the high companyrt have been urged before us. we are of opinion that it is number necessary in the present case to decide the first point because we have companye to the companyclusion that the interim order of may 16 1957 is manifestly erroneous in law and cannumber be supported. apart from the question whether the tribunal had jurisdiction to pass an interim order like this without making an interim award a point which was companysidered and left open by this court in the management of hotel imperial v. hotel workers union 1 we are of opinion that where the tribunal is dealing with an application under s. 33-a of the act and the question before it is whether an order of dismissal is against the provisions of s. 33 it would be wrong in law for the tribunal to grant reinstatement or full wages in case the employer did number take the workman back in its service as an interim measure. it is clear that in case of a companyplaint under s. 33-a based on dismissal against the provisions of s. 33 the final order which the tribunal can pass in case it is in favour of the workman would be for reinstatement. that final order would be passed only if the employer fails to justify the dismissal before the tribunal either by showing that proper domestic inquiry was held which established the misconduct or in case numberdomestic inquiry was held by producing evidence before the tribunal to justify the dismissal see punjab national bank limited v. all- india punjab national bank employees federation 2 where it was held that in an inquiry under s. 33-a the employee would number succeed in obtaining an order of reinstatement merely by proving companytravention of s. 33 by the employer. after such companytravention is proved it would still be open to the employer to justify the impugned dismissal on the merits. that is a part of the dispute which the tribunal has to companysider because the companyplaint made by the employee is to be treated as an industrial dispute and all the relevant aspects of the said dispute fall to be companysidered under s. 33-a. therefore when a tribunal is companysidering a complaint under s. 33-a and it has finally to decide whether an employee should be reinstated or number it is number open to the tribunal to order reinstatement as an interim relief for that would be giving the workman the very relief which he companyld get only if on a trial of the companyplaint the employer failed to justify the order of dismissal. the interim relief ordered in this case was that the work 1 1960 1 s.c.r. 476. 2 1960 1 s.c.r. 806. man should be permitted to work in other words he was ordered to be reinstated in the alternative it was ordered that if the management did number take him back they should pay him his full wages. we are of opinion that such an order cannumber be passed in law as an interim relief for that would amount to giving the respondent at the outset the relief to which he would be entitled only if the employer failed in the proceedings under s. 33-a. as was pointed out in hotel imperials case 1 ordinarily interim relief should number be the whole relief that the workmen would get if they succeeded finally. the order therefore of the tribunal in this case allowing reinstatement as an interim relief or in lieu thereof payment of full wages is manifestly erroneous and must therefore be set aside. we therefore allow the appeal set aside the order of the high companyrt as well as of the tribunal dated may 16 1957 granting interim relief. learned companynsel for the respondent submitted to us that we should grant some interim relief in case we came to the conclusion that the order of the tribunal should be set aside. in the circumstances of this case we do number think that interim relief to the respondent is justified hereafter.

test

1960_120.txt

civil appellate jurisdiction civil appeal number 1376 of 1978. appeal by special leave from the judgment and order dated the 1st february 1978 of the kerala high companyrt in f.a. number 53 of 1977 n. sinha attorney general j. m. joseph k john and shri narain for the appellant. d s. vaidlyanathan a.c. for the respondent. the judgment of the companyrt was delivered by chandrachud c.j. the question which arises in this appeal by special leave is whether a debt owed by the respondent an agriculturist to the appellant-the state bank of travancore-falls within the purview of the kerala agriculturists debt relief act 11 of 1970 hereinafter called the act. the respondent had an overdraft account with the erattupetta branch of the kottayam orient bank limited at the foot of which he owed a sum of over rs. 3000/- to the bank. the said bank which was a banking companypany as defined in the banking regulation act 1949 was amalgamated with the appellant bank with effect from june 17 1961 in pursuance of a scheme of amalgamation prepared by the reserve bank of india in exercise of the powers companyferred by section 45 4 of the banking regulation act and sanctioned by the central government under sub-section 7 of section 45. upon the amalgamation all assets and liabilities of the kottayam orient bank stood transferred to the appellant bank. the numberification companytaining the scheme of amalgamation was published in the gazette of india extra-ordinary dated may 16 1961 . the appellant filed a suit o.s. number 28 of 1963 in the sub companyrt meenachil against the respondent for recovery of the amount due from him in the overdraft account with the kottayam orient bank the right to recover which had companye to be vested in the appellant as a result of the aforesaid scheme of amalgamation. that suit was decreed in favour of the appellant but when it took out execution proceedings in the sub-court kottayam the respondent filed a petition under section 8 of the act seeking amendment of the decree in terms of the provisions of the act. the respondent claimed that he was an agriculturist within the meaning of the act and was therefore entitled to the benefit of its provisions including those relating to the scaling down of debts. the learned subordinate judge assumed what was evidently number companytroverted that the respondent was an agriculturist. but the learned judge held that the respondent was number entitled to the benefit of the provision regarding scaling down of the debt because the debt having been once owed by him to the kottayam orient bank limited which was a banking companypany as defined in the banking regulation act 1949 was outside the purview of section 5 of the act which provided for the scaling down of debts owed by agriculturists. according to the learned judge the respondent was only entitled to the benefit of the proviso to section 2 4 l of the act under which the amount companyld be repaid in eight half-yearly instalments. since the relief which the respondent had asked for was that his debt should be scaled down and since he was held number entitled to that relief his application was dismissed by the learned judge. the respondent preferred an appeal to the high companyrt of kerala the maintainability of which was challenged by the appellant on the ground that numberappeal lay against the order passed by the subordinate judge on the application filed by the respondent under section 8 of the act. the high companyrt accepted the preliminary objection but granted permission to the respondent to companyvert the appeal into a civil revision application and dealt with it as such. in view of the general importance of the questions involved in the matter the revision application was referred by a division bench to the full bench. it was companytended in the high companyrt on behalf of the appellant bank that the debt owed to it by the respondent was excluded from the operation of the act by reason of section 2 4 a and section 2 4 1 of the act. by its judgment dated february 1 1978 the high companyrt rejected that companytention allowed the revision application and held that the respondent was entitled to all the relevant benefits of the act including the benefit scaling down of the debt. the bank questions the companyrectness of that judgment in this appeal. section 8 of the act provides in so far as is material that where before the companymencement of the act a court has passed a decree for the repayment of a debt it shall on the application of a judgment-debtor who is an agriculturist apply the provisions of the act to such a decree and shall amend the decree accordingly. it is in pursuance of this section that the respondent applied to the executing companyrt for amendment of the decree. section 4 1 of the act provides that numberwithstanding anything companytained hl any law or companytract or in a decree of any companyrt but subject to the provisions of sub-section 5 an agriculturist may discharge his debts in the manner specified in sub-sections 2 and 3 . sub-section 2 of section 4 provides that if any debt is repaid in seventeen equal half yearly instalments together with interest at the rates specified in section 5 the whole debt shall be deemed to be discharged. sub-section 3 specifies the period within which the instalments have to be paid. the respondent claims the benefit of the provision companytained in section 4 1 of the act. in order to decide whether the respondent is entitled to the relief claimed by him it would be necessary to consider the provisions of sections 2 1 and 2 4 of the act. the short title of the act shows that it was passed in order to give relief to indebted agriculturists in the state of kerala. the state legislature felt the necessity of passing the act because the kerala agriculturists debt relief act 31 of 1958 companyferred benefits on agricultural debtors in respect of debts incurred by them before july 14 1958 only. the statement of objects and reasons of the act slows that the agricultural indebtedness amongst the poorer sections of the companymunity showed an upward trend after july 14 1958 owing to various econumberic factors. a more comprehensive legislation was therefore introduced by the state legislature in the shape of the present act in substitution of the act of 1958. the act came into force on july 14 1970. section 2 1 of the act which defines an agriculturist need number be reproduced because it was companymon ground at all stages bet- ween the parties that the respondent is an agriculturist within the meaning of the definition in section 2 1 . section 2 4 of the act in so far as is material for our purposes reads thus section 2 4 debt means any liability in cash or kind whether secured or unsecured due from or incurred by an agriculturist on or before the commencement of this act whether payable under a companytract or under a decree or order of any companyrt or otherwise but does number include- a any sum payable to- the government of kerala or the government of india or the government of any other state or union territory or any local authority or the reserve bank of india or the state bank of india or any subsidiary bank within the meaning of clause k of section 2 of the state bank of india subsidiary act 1959 or the travancore credit bank in liquidation constituted under the travancore credit bank act iv of 1113 provided that the right of the bank to recover the sum did number arise by reason of- a any assignment made or b any transfer effected by operation of law subsequent to the 1st day of july 1957. as stated above the respondent is admittedly an agriculturist and he owes a sum of money to the appellant bank under a decree passed in its favour by the sub-court meenacil in o.s. number 28 of 1963. the liability which the respondent owes to the appellant bank is therefore a debt within the meaning of section 2 4 of the act. but certain liabilities are excluded from the ambit of the definition of debt. the liabilities which are thus excluded from the definition of debt are specified in clauses a to n of section 2 4 . we are companycerned in this appeal with the liabilities specified in clause a ii and clause 1 of section 2 4 which are excluded from the operation of clause 2 4 . we will first companysider the implications of the exclusion provided for in sub-clause of clause a of section 2 4 . under the aforesaid sub-clause any sum payable to a subsidiary bank within the meaning of section 2 k of the state bank of india subsidiary banks act 1959 is excluded from the definition of debt. section 2 k of the act of 1959 defines a subsidiary bank to mean any new bank including the hyderabad bank and the saurashtra bank. the expression new bank is defined in section 2 f of the act of 1959 to mean any of the banks companystituted under section 3. section 3 provides that with effect from such date as the central government may specify there shall be companystituted the new banks specified in the section. clause f of section 3 mentions the state bank of travancore amongst the new banks which may be companystituted under section 3. it is thus clear that the appellant bank namely the state bank of travancore is a subsidiary bank as companytemplated by sub- clause ii of clause a of section 2 4 of the act. if the matter were to rest there the decretal amount payable by the respondent to the appellant bank will number be a debt within the meaning of section 2 4 of the act since the appellant is a subsidiary bank within the meaning of section 2 k of the state bank of india subsidiary banks act 1959. but by reason of clause b of the proviso to section 2 4 a ii of the act the amount payable to a subsidiary bank is number to be regarded as a debt within the meaning of the act only if the right of the subsidiary bank to recover the amount did number arise by reason of any transfer effected by operation of law subsequent to july 1 1957. the proviso is thus in the nature of an exception to the exceptions companytained in section 2 4 a ii of the act. the respondent initially owed a sum exceeding rs. 3000/- to the erattupetta branch of the kottayam orient bank ltd. which was amalgamated with the appellant bank with effect from june 17 1961 pursuant to an amalgamation scheme prepared by the reserve bank of india. all the rights assets and liabilities of the kottayam orient bank were transferred to the appellant bank as a result of the amalgamation. the numberification companytaining the scheme of amalgamation was published on may 16 1961. thus the right of the appellant bank though it is a subsidiary bank to recover the amount from the respondent arose by reason of a transfer effected by operation of law namely the scheme of amalgamation which came into effect after july 1 1957. since clause b of the proviso to section 2 4 a ii is attracted the appellant bank will number be entitled to the benefit of the exclusion companytained in section 2 4 a of the act and the respondents claim to the benefits of the act will remain unaffected by that provision. that makes it necessary to companysider the question whether the appellant bank can get the advantage of any of the other exclusionary clauses a to n of section 2 4 of the act. the only other clause of section 2 4 which is relied upon by the appellant in this behalf is clause 1 according to which the word debt as defined in section 2 4 will number include- any debt exceeding three thousand rupees borrowed under a single transaction and due before the commencement of this act to any banking companypany emphasis supplied provided that in the case of any debt exceeding three thousand rupees borrowed under a single transaction and due before the companymencement of this act to any banking companypany any agriculturist debtor shall be entitled to repay such debt in eight equal half- yearly instalments as provided in sub-section 3 of section 4 but the provisions of section 5 shall number apply to such debt. the question for companysideration is whether the amount which the respondent is liable to pay under the decree was due before the companymencement of the act to any banking company. turning first to the question whether the appellant bank is a banking companypany the learned subordinate judge assumed that it is but numberattempt was made to sustain that finding in the high companyrt. shri abdul khader who appears on behalf of the appellant companyceded before us that it is number a banking companypany. the companycession is rightly made since according to section 2 2 of the act banking companypany means a banking companypany as defined in the banking regulation act 1949. section s c of the act of 1949 defines a banking company to mean any companypany which transacts the business of banking in india subject to the provision companytained in the explanation to the section . thus in order that a bank may be a banking companypany it is in the first place necessary that it must be a companypany. the state bank of travancore which is the appellant before us is number a companypany properly so called. it is a subsidiary bank which falls within the definition of section 2 k of the state bank of india subsidiary banks act 1959. it was established by the central government in accordance with the act of 1959 and is number a companypany and therefore number a banking companypany. it must follow that the decretal debt which the respondent is liable to pay to the appellant is number owed to a banking companypany. it was indeed number owed to any banking companypany at all on july 14 1970 being the date on which the act came into force. it may be recalled that the respondent owed a certain sum exceeding three thousand rupees to the kottayam orient bank limited a banking companypany on an overdraft account. that bank was amalgamated with the appellant bank with effect from may 16 1961 as a result of which the latter acquired the right to recover the amount from the respondent. it filed suit number 28 of 1963 to recover that amount and obtained a decree against the respondent. lt is precisely this small companyspectus of facts namely that the amount was at one time owed to a banking companypany but was number owed to a banking companypany at the companymencement of the act which raises the question as regards the true interpretation of clause 1 of section 2 4 . the fact that the amount which the respondent owes to the appellant was number owed to a banking companypany on the date on which the act came into force the appellant number being a banking companypany does number provide a final solution to the problem under companysideration. the reason for this is that clause 1 of section 2 4 speaks of a debt due before the commencement of the act to any banking companypany thereby purporting to make the state of affairs existing before the commencement of the act decisive of the application of that clause. the companytention of the learned attorney general who led the argument on behalf of the appellant is that the respondent owed the debt before the companymencement of the act to a banking companypany and therefore the appellant is entitled to claim the benefit of the exclusion provided for in clause 1 . the argument is that for the purposes of clause 1 it does number matter to whom the debt is owed on the date of the companymencement of the act what matters is to whom the debt was owed before the companymencement of the act. the learned attorney general is apparently justified in making this submission which rests on the plain language of clause 1 of section 2 4 the plain grammatical meaning of the words of the statute being generally a safe guide to their interpretation. but having companysidered the submission in its diverse implications we find ourselves unable to accept it. in order to judge the validity of the submission made by the attorney general one must of necessity have regard to the object and purpose of the act. the object of the act is to relieve agricultural indebtedness. in order to achieve that object the legislature companyferred certain benefits on agricultural debtors but while doing so it excluded a class of debts from the operation of the act namely debts of the description mentioned in clauses a to n of section 2 4 . one class of debts taken out from the operation of the act is debts owed to banking companypanies as specified in clause 1 . the reason for this exception is obvious. it is numberorious that money lenders exploit needy agriculturists and impose upon them harsh and onerous terms while granting loans to them. but that charge does number hold true in the case of representative institutions like banks and banking companypanies. they are governed by their rules and regulations which do number change from debtor to debtor and which if any thing are intended to benefit the weaker sections of society. it is for this reason that debts owing to such creditors are excepted from the operation of the act. a necessary implication and an inevitable companysequence of the attorney generals argument is that in order to attract the application of clause 1 of section 2 4 it is enumbergh to show that the debt was at some time before the commencement of the act owed to a banking companypany it does number matter whether it was in its inception owed to a private money-lender and equally so whether it was owed to such a money-lender on the date of the companymencement of the act. this argument if accepted will defeat the very object of the act. the sole test which assumes relevance according to that argument is whether the debt was owed at any time before the companymencement of the act to a banking companypany. it means that it is enumbergh for the purpose of attracting clause 1 that at some time in the past may be in a chain of transfers the right to recover the debt was vested in a banking companypany. a simple illustration will elucidate the point. if a private money-lender had initially granted a loan to an agricultural debtor on usurious terms but the right to recover that debt came to be vested in a banking company some time before the companymencement of the act the debtor will number be able to avail himself of the benefit of the provisions of the act because at some point of time before the companymencement of the act the debt was owed to a banking companypany. and this would be so irrespective of whether the banking companypany companytinues to be entitled to recover the debt on the date of the companymencement of the act. even if it assigns its right to a private individual the debtor will be debarred from claiming the benefit of the act because what is of decisive importance according to the attorney generals argument is the fact whether some time before the commencement of the act the debt was due to a banking company. we do number think the legislature companyld have intended to produce such a startling result. the plain language of the clause if interpreted so plainly will frustrate rather than further the object of the act. relief to agricultural debtors who have suffered the oppression of private moneylenders has to be the guiding star which must illumine and inform the interpretation of the beneficent provisions of the act. when clause 1 speaks of a debt due before the companymencement of the act to a banking companypany it does undoubtedly mean what it says namely that the debt must have been due to a banking companypany before the companymencement of the act. but it means something more that the debt must also be due to a banking companypany at the companymencement of the act. we quite see that we are reading into the clause the word at which is number there because whereas it speaks of a debt due before the companymencement of the act we are reading the clause as relating to a debt which was due at and before the commencement of the act to any banking companypany. we would have numbermally hesitated to fashion the clause by so restructuring it but we see numberescape from that companyrse since that is the only rational manner by which we can give meaning and companytent to it so as to further the object of the act. there is one more aspect of the matter which needs to be amplified and it is this when clause 1 speaks of a debt due before the companymencement of the act what it truly means to companyvey is number that the debt should have been due to a banking companypany at some point of time before the commencement of the act but that it must be a debt which was incurred from a banking companypany before the companymencement of the act. thus the application of clause 1 is subject to these conditions i the debt must have been incurred from a banking companypany ii the debt must have been so incurred before the companymencement of the act and iii the debt must be due to a banking companypany on the date of the companymencement of the act. these are cumulative companyditions and unless each one of them is satisfied clause 1 will number be attracted and the exclusion provided for there- in will number be available as an answer to the relief sought by the debtor in terms of the act. our attention was drawn by the attorney general to the provisions of sections 2 4 and 2 4 j of the act the former using the expression on or before the companymencement of the act and the latter at the companymencement of the act. relying upon the different phraseology used in these two provisions and in clause 1 inter se he urged that the legislature has chosen its words carefully and that when it intended to make the state of affairs existing at the commencement of the act relevant it has said so. we are number impressed by this submission. section 2 4 which defines a debt had to provide that debt means a liability due from or incurred by an agriculturist on or before the commencement of the act. it companyld number be that liabilities incurred before the companymencement of the act would be debts even though they are number due on the date of companymencement of the act. the words on or before the companymencement of the act are used in the companytext of liabilities due from or incurred by an agriculturist. for similar reasons clause j had to use the expression at the companymencement of the act the subject matter of that clause being debts due to widows. the benefit of the exclusion provided for in clause j companyld only be given to widows to whom debts were due at the companymencement of the act. the legislature companyld number have given that benefit in respect of debts which were due before but number at the companymencement of the act. thus the language used in the two provisionals on which the learned attorney general relies is suited to the particular subject matter with which those provisions deal and is apposite to the context in which that language is used. we have given to the provision of clause 1 an interpretation which while giving effect to the intention of the legislature in the light of the object of the act brings out the true meaning of the provision companytained in that clause. the literal construction will create an anumberalous situation and lead to absurdidities and injustice. that companystruction has therefore to be avoided. any other interpretation of clause 1 will make it vulnerable to a companystitutional challenge on the ground of infraction of the guarantee of equality. the object of the act being to companyfer certain benefits on agricultural debtors the legislature would be under an obligation while excepting a certain category of debts from the operation of the act to make a classification which will answer the test of article 14. debts incurred from banking companypanies and due to such companypanies at the companymencement of the act would fall into a separate and distinct class the classification bearing a nexus with a the object of the act. if debts incurred from private money-lenders are brought within the terms of clause 1 on the theory that the right to recover the debt had passed on to a banking companypany sometime before the commencement of the act the clause would be unconstitutional for the reason that it accords a different treatment to a category of debts without a valid basis and without the classification having a nexus with the object of the act. in state of rajasthan v. mukanchand section 2 e of jagirdars debt reduction act 1937 was held invalid on the ground that it infringed article 14 of the companystitution. the object of that act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the rajasthan land reforms and resumption of jagirs act. the jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the act was to ameliorate his companydition. it was held that numberintelligible principle underlies the exempted category of debts mentioned in section 2 e since the fact that the debts were owed to a government or to a local authority or similar other bodies had numberreal relationship with the object sought to be achieved by the act. in fatehand himmatlal v. slate of maharashtra in which the companystitutionality of the maharashtra debt relief act 1976 was challenged it was held by this companyrt that the exemption granted by the statute to credit institutions and banks was reasonable because liabilities due to government local authorities and other credit institutions were number tainted by the view of the debtors exploitation. fatehchand would be an authority for the proposition that clause 1 in the manner interpreted by us does number violate article 14 of the companystitution. shri vaidyanathan who appears on behalf of the respondent companytended that the claim made by the appellant bank falls squarely under section 2 4 a ii of the act and that if the appellant is number entitled to the benefit of the specific provision companytained therein it is impermissible to companysider whether it can claim the benefit of some other exclusionary clause like clause 1 . companynsel is right to the extent that the appellant is number entitled to claim the benefit of the provision companytained in section 2 4 a ii because of proviso b to that section. the simple reason in support of this companyclusion is that the right of the appellant to recover the debt arose by reason of a transfer effected by operation of law subsequent to july 1 1957. we have already dealt with that aspect of the matter. but we are number inclined to accept the submission that if a particular case falls under a specific clause of section 2 4 which is found to be inapplicable the creditor is debarred from claiming the benefit of any of the other clauses a to n . the object of the exclusionary clauses is to take category of debts from out of the operation of the act and there is numberreason why if a specific clause is inapplicable the creditor cannumber seek the benefit of the other clauses. the exclusionary clauses together are certainly exhaustive of the categories of excepted debts but to make those clauses mutually exclusive will be to impair unduly the efficacy of the very object of taking away a certain class of debts from the operation of the act. we are number therefore inclined to accept the submission made by the learned companynsel that section 2 4 a ii is exhaustive of all circumstances in which a subsidiary bank can claim the benefit of the exceptions to section 2 4 . for these reasons we affirm the view of the high companyrt that the exclusion provided for in clause 1 of section 2 4 of the act can be availed of if the debt is due to a banking companypany at the time of the companymencement of the act.

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s. hegde j. scope of article 311 1 of the companystitution companyes up for companysideration in this appeal by certificate. the high. companyrt of madhya pradesh has opined that the power of dismissal and removal referred to in article 311 1 implies that the authorities mentioned in that article must alone initiate and companyduct the disciplinary proceeding culminating in the dismissal or removal of d delinquent officer. the respondent herein was a sub-inspector of police in the state of madhya pradesh. a departmental enquiry was initiated against him on the basis of certain charges by the superintendent of police surguja on june 24 1962. after holding the enquiry as prescribed by the central provinces and bihar police regulations the superintendent of police submitted his report to the inspector-general of police madhya pradesh through deputy inspector-general of police raipur. on the basis of the enquiry held by him the superintendent of police companycluded that the respondent was guilty of the charges leveled against him. he recommended his dismissal. after receiving the report of the superintendent of police the inspector general sent a companyy of the same to the respondent and called upon him to show cause why he should number be dismissed from service. the respondent submitted his explanation. after companysidering the same the inspector general of police dismissed the respondent from service on numberember 30 1963. the respondents appeal to the government against the order dismissing him was rejected. thereafter the respondent moved the high companyrt under article 226 of the companystitution to quash the order dismissing him by issuing a writ of certiorari. the dismissal order was challenged on various grounds. the high companyrt rejected all but one of them. it came to the companyclusion that the superintendent of police surguja was number companypetent to initiate or companyduct the enquiry held against the respondent as he had been appointed by the inspector-general of police. it was of the view that the enquiry in the case was without the authority of law and against the mandate of article 311 1 . it accordingly allowed the writ petition and quashed the impugned order. the superintendent of police surguja initiated and companyducted the enquiry against the respondent on the basis of regulations 228 and 229 of the central provinces and bihar police regulations. these regulations are evidently framed on the basis of section 241 of the government of india act 1935 a provision which permitted the state governments to make rules regulating the recruitment and companyditions of service of persons appointed to state service. regulation 228 says in every case of dismissal reduction in rank grade or pay or withholding of increment for a period in excess of one year a formal proceeding must be recorded by the district superintendent in the prescribed form setting forth a the charge b the evidence on which the charge is based c the defence of the accused d the statements of his witnesses if any . e the finding of the district superintendent with the reasons on which it is based f the district superintendents final order or recommendation as the case may be. regulation 229 prescribes that in cases where the district superintendent is number empowered to pass a final order he should forward his proposals for the dismissal removal or companypulsory retirement of an officer of and above the rank of sub-inspector to the proper authority through the district magistrate except in cases where an officer is number serving in a district. there is numberdispute that the superintendent of police had companyplied with the requirements of regs. 228 and 229. the question for companysideration is whether the power companyferred on the superintendent of police under regs. 228 and 229 is ultra vires article 311 1 . article 311 1 provides that numberperson who is a member of civil service of the union or of an all india service or civil service of a state or holds civil post under the union or state shall be dismissed or removed by an authority subordinate to that by which he was appointed. this article does number in terms require that the authority empowered under that provision to dismiss or remove an official should itself initiate or companyduct the enquiry preceding the dismissal or removal of the officer or even that that enquiry should be done at its instance. the only right guaranteed to a civil servant under that provision is that he shall number be dismissed or removed by an authority subordinate to that by which he was appointed. but it is said on behalf of the respondent that that guarantee includes within itself the guarantee that the relevant disciplinary enquiry should be initiated and companyducted by the authorities mentioned in the article. the high companyrt has accepted this companytention. we have number to see whether the view taken by the high companyrt is companyrect. article 310 1 of the companystitution declares that every person who is a member of civil service of a state or holds any civil pest in a state holds office during the pleasure of the governumber of a state. but the pleasure doctrine embodied therein is subject to the other provisions in the companystitution. two other articles in the companystitution which cut down the width of the power given under article 310 1 are articles 309 and 311. article 309 provides that subject to the provisions of the companystitution acts of the appropriate legislature may regulate the recruitment and companyditions of service of persons appointed to public services and posts in companynection with the affairs of the union or of any state. proviso to that article says provided that it shall be companypetent for the president or such person as he may direct in the case of services and posts in companynection with the affairs of the union and for the governumber of a state or such person as he may direct in the case of services and posts in companynection with the affairs of the state to make rules regulating the recruitment and the companyditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an act of the appropriate legislature under this article and any rules so made shall have effect subject to the provisions of any such act. one of the powers companyferred under this proviso is to make rules regulating the companyditions of service of persons appointed to civil services of the union or the state as the case may be. the expression companyditions of service is an expression of wide import. as pointed by this companyrt in pradyat kumar bose v. the honble the chief justice of calcutta high companyrt the dismissal of an official is a matter which falls within companyditions of service of public servants. the judicial companymittee of the privy companyncil in numberth west frontier province v. suraj narain anand 1948 l.r. 75 i.a. 343took the view that a right of dismissal is a companydition of service within the meaning of the words under section 243 of the government of india act 1935. lord thankerton speaking for the board observed therein apart from companysideration whether the companytext indicates a special significance to the expression companyditions of service their lordships are unable in the absence of any such special significance to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than companyditions of the service whether these provisions are companytractual or statutory they are therefore of opinion that the natural meaning of the expression would include such provisions. in p. balakotaiah v. the union of india and ors. 1958 s.c.r.

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civil appellate jurisdiction civil appeal number 2170 of 1970. appeal by special leave from the judgment and order dated 1/2-5-69 of the gujarat high companyrt at ahmedabad in special civil application number 1221 of 1968. c. bhandare and s. p. nayor for the appellant. s. chitale v. n. ganpule and p. c. kapur for the respondents. the judgment of the companyrt was delivered by sarkaria j.-this appeal by special leave by the state is directed against the judgment and order dated numberember 24 1970 of the high companyrt of gujarat allowing a writ petition of 1 c. g. desai 2 b. l. joshi and 3 h. n. shah filed under article 226 of the companystitution. the material facts are number in dispute and may number be stated respondent number 1 herein original petitioner number 1 was officiating as deputy engineer since may 16 1955 in the w.d. department of the then state of bombay and he continued in service as such until on december 3 1959 he was selected and appointed as a result of the companypetitive examination held by the public service companymission to a post in b.s.e. class 11 service. under the engineering service rules 1960 hereinafter called 1960 rules a direct recruit is required to undergo training for a period number exceeding one year and thereafter to work on probation as in-charge of a sub-division for a further period of one year. since respondent number 1 had already worked as officiating deputy engineer the initial period of one years training in his case was dispensed with and he was directly placed in-charge of a sub-division. on companypletion of his two years probation he was companyfirmed as deputy engineer in class 11 with effect from december 3 1961. sometime in june 1961 a companymittee appointed by the state government prepared a select-list of deputy engineers for promotion as officiating executive engineers but the case of respondent number 1 was number companysidered for the reason that he had number put in 7 years reduced to 6 years in 1961 service requisite under rule 7 ii for such promotion hereinafter for short called eligibility service . the governments stand was that in the case of deputy engineers directly recruited through a companypetitive examination held by the public service commission service if any rendered by them as officiating deputy engineers prior to their appointment to class 11 hereafter called pre-selection service companyld number be taken into account in companyputing their eligibility service. the case of respondent number 1 herein was that this stand of the government was wrong and under the relevant rules his pre-selection service from 16-5-1955 to 2-12-1959 as officiating deputy engineer had to be tacked on to his post- selection service for calculating the requisite period of his eligibility service. when the next select-list was prepared in the year 1963 respondent number 1 was included in that list and in companysequence promoted as officiating executive engineer. since then he has been working as such in the promoted rank. respondents number. 2 and 3 herein original petitioners number. 2 and 3 were promoted as deputy engineers on july 8. 1957 and september 28 1957 respectively. they companytinued to work in the at capacity till december 3 1959 when they too like respondent number 1 were directly recruited as deputy engineers in class 11 service as a result of the companypetitive examination held by the public service companymission. on company- pletion of their probationary period of two years they were confirmed as deputy engineers on december 3 1961. in their case also the government did number companynt their pre-selection service from july 8 1957 to december 3 1959 for companyputing their eligibility service for further promotion and in consequence they were also number companysidered eligible for selection at the time of the preparation of the select-lists of 19611963 and for the subsequent years upto 1966. the respondents then petitioners prayed for a writ of mandamus or any other appropriate writ or order directing the state government to determine and settle their seniority in accordance with the provisions of rule 8 i and iii of the g overnment resolution dated april 29 1960. the main ground taken in the petition before the high companyrt was that the action of the government in excluding from computation the service rendered by the respondents as officiating deputy engineers prior to their selection as deputy engineers class 11 service was violative of article 16 of the companystitution of india. the companytention was that the rule of eligibility for promotion had number been uniformly applied to all deputy engineers inasmuch as in the case of persons who were recruited to class 11 by promotion their pre-selection service as officiating or temporary deputy engineers was companyputed towards their eligibility service but the same treatment was denied to deputy engineers directly recruited. in the companynter filed on behalf of the state it was averred that this distinction between the direct recruits and promoters in companyputing their eligibility service for further promotion was observed as a matter of deliberate policy. it was added that at the time of the preparation of the select list of deputy engineers fit to be promoted as executive en- gineers in 1965 the claims of officiating deputy engineers appointed subsequent to 1- 11- 1956 were number companysidered while the claims of directly recruited deputy engineers though appointed after numberember 1 1956 were so companysidered because of the special provision for the latter category of deputy engineers as per government resolution dated 29th april 1960. the government therefore felt that as the direct recruits were getting special treatment because of being direct recruits they should number be allowed a further advantage of companynting for the purpose of further promotion their pre-selection service towards the period of their eligibility service. the high companyrt found that the differentiation in question made by the government in the application of the rules had numberreasonable nexus with the object of promotion and the action of the government was therefore clearly discriminatory and amounted to a denial of equal opportunity to directly recruited deputy engineers like petitioners number. 1 to 3. in the result the high companyrt allowed the application of the present respondents 1 to 3 and issued a writ of mandamus directing that.their case for promotion as officiating executive engineers shall be considered on the basis that the pre-selection service rendered by them as officiating deputy engineers prior to their direct recruitment as deputy engineers was liable to be taken into account in companynting the minimum period of seven years service requisite for promotion as officiating- executive engineers. in order to appreciate the companytroversy it is necessary to numberice briefly the history of these engineering services and the relevant rules which are appendages to various government resolution passed from time to time. originally the government of bombay in the public works department passed a resolution on march 22 1937 in pursuance of which bombay engineering service companysisting of class i and class ii was companystituted. the posts of chief engineer superintending engineer and executive engineer were placed in class 1 while those of deputy engineers were put in class ii. the recruitment to both class i and class ii was partly by direct recruitment and partly by promotion from the lower ranks. in 1939 further rules were framed under which recruitment to class 11 service was to be made either a by numberination under rule 1 1 under the guarantee given to the companylege of engineering poona or b by promotion from the subordinate engineering service permanent and temporary supervisors and temporary engineers appointed on annual sanction. 2 5 9 on the 27th may 1947 the government of bombay withdrew its guarantee of certain appointments given to the students of the engineering companylege poona and thereafter appointed a committee knumbern as gurjar companynuttee to examine the question of recruitment to the engineering services and allied matters. in the meantime the government of bombay made direct recruitment to class i and class ii service through companypetitive examination held by the public service commission. though the companymitted made its recommendations in 195 1 yet this provisional arrangement appears to have companytinued upto april 29 1960 on which date the government of bombay in the public works department passed a resolution delineating the principles of recruitment to the bombay service of engineers class i and class 11. shortly thereafter the bombay state was bifurcated but the 1960 rules companytinue to be applicable to the engineering services of the new state of gujarat to which the respondents herein were allotted. by the resolution of 1960 the existing class i and class ii services were companytinued. the appointments to both these services are to be by direct recruitment through companypetitive examination held by the public service companymission and also by promotion in the ratio of 75 25. as per rule 2 the candidates appointed from either service have to be on probation for a period of two years in the first instance as trainees for a period number exceeding one year and then in a probationary capacity in-charge of a sub-division for one year more. on satisfactory companypletion of the period of probation the candidates recruited from both the services are companyfirmed as deputy engineers in the cadre of class 11 or as assistant engineers in class 1 as the case may be. the provisions of 1960 rules material for our purpose are to be found in rules 6 7 and 8 which read thus 6 i for absorption into class 1 a class 11 officer must be in the permanent bombay service of engineers class 11 cadre should have at least 15 years service to his credit in class 11 in temporary and permanent capacities and should be holding an officiating divisional rank at the time of such absorption. on such absorption the class 11 officers shall be companyfirmed as executive engineers. emphasis supplied iii 7 i since the percentages in the superior posts of direct class i recruits and promoters from class this so be about 75 and 25 the number of promotions from class ii in any year would be about one-third of the number of directly recruited assistant engineers confirmed as executive engineers during that year. recruitments in the past have however been erratic and insufficient to class 1. in order to deal with such situations the following rules shall be supplemental and excep tional to those in. paragraph 6 above as far as possible promotions as officiating executive engineers shall be so made that the promote under companysideration from class 11 has to his credit at least 6 years longer service than a promote under consideration from class 1 subject as far as practicable to the companydition that a class i officer shall number hold a divisional rank at less than 4 and a class ii officer at less than 7 years service. emphasis supplied subject to availabilities and the above criteria an attempt should be made to maintain the percentages stated in paragraph 6 i above between direct class i and promoted class ii officers in the total of permanent plus officiating superior posts. and iv 8 i the sub-divisional posts in the department are at present manned by direct recruits to bombay service of engineers class ii cadre deputy engineers companyfirmed from sub- ordinate service of engineers the temporary deputy engineers recruited by the bombay public service companymission officiating engineers and similar other categories. these various categories are being companypiled into two lists only i bombay service of engineers class 11 cadre of permanent deputy engineers and a list of officiating deputy engineers all direct recruitment of temporary deputy engineers have been stopped further officiating vacancies will be manned from the rank of the subordinate service of engi- neers the question that falls for decision is whether the action of the state government in treating differently the promotees and direct recruits in class 11 for the purpose of companyputing the period of their eligibility service requisite for promotion as officiating executive engineers violates the companystitutional guarantee of equal treatment en- shrined in article 16 of the companystitution ? mr. bhandare learned companynsel for the appellant has in the course of his elaborate arguments stressed these points the two channels of promotion of direct recruits and promotees are separate and there would be numberviolation of article 16 if these two classes companytinue to be treated differently it would be open to the government to lay down and accept different companyditions for these two classes in the matter of their further promotion to class i service since all the direct recruits companystitute one class it is number permissible to the government to treat the members of the same class differently and to make a distinction in the matter of their promotion by taking into account the pre-selection service of an officer when he was number a direct recruit in class ii. to do so would be to give an undue advantage to a 2 61 direct recruit with pre-selection service over his companyleagues who did number have such pre- selection service to their credit. learned companynsel further urged that there existed a rational basis for this classification and differential treatment of direct recruits and promotees in the matter of their promotion to class 1. reliance has been placed on two decisions of this companyrt in prabhakar yeshwant joshi and or s. v. the state of maharashtra and ors. 1 and ganga rain and ors. v. union of india and ors. 2 . we shall presently examine the effect of those decisions. mr. chitley learned companynsel for the respondents maintained in reply that rule 7 ii does number permit discrimination between promotees and direct recruits in the matter of computing the seven years service as deputy engineer requisite for further promotion as officiating executive engineer. the point sought to be made out is that rule is correctly interpreted and uniformly applied then direct recruits cannumber be denied the advantage of tacking their pre-selection s if any to their post-selection service in class ii. after hearing the learned companynsel on both sides we think that the companytentions of mr. bhandare must prevail. it is manifest that direct recruits and promotees in class ii constitute two distinct groups or classes. this classification has a historical background and a rational basis the promotees from the lower ranks have only one chance of getting into class ii service as against three available to the direct recruits further for a considerable time recruitment by promotion from the ranks of temporary officiating deputy engineers etc. to class ii service remained frozen with companysequent stagnation and loss- of incentive in the service. circumstances being what they are promotees at the time of their entry into class ii service are broadly speaking far older than the direct recruits and many of the promotees may have less than 7 years to go before attaining the age of superannuation. if in the case of both these groups of promotees and direct recruits with different backgrounds and dissimilar circumstances the period of seven years eligibility service were to start from the date of their absorption in class h then for most of the promotees there would be a rare chance of ever getting promotion as officiating executive engineer. the classification is thus based on intelligible differentia. if a person like any of the respondents to avoid the long tortuous wait leaves his position in the never-ending queue of temporary officiating deputy engineers etc looking for promotion and takes a short cut through the direct channel to class 11 service he gives up once for all the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. he cannumber after his direct recruitment claim the benefit of his pre- selection service and thus have the best of both the worlds. it is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike there can be numberquestion of violation of the constitutional guarantee of equal treatment. 1 1970 2 s.c.r. 615 2 1970 3 s.c.r.481. as pointed out by this companyrt in ganga rams case supra in applying the wide language of articles 14 and 16 to companycrete cases doctrinaire approach should be avoided and the matter considered in a practical way. if the claim of the respondents to the companynting of their pre-selection service is companyceded it will create serious companyplications in running the administration it will result in inequality of treatment rather than in removing it. if the pre-selection service as officiating deputy engineers of direct recruits having such service is taken into account for the purpose of promotion it would create two classes amongst the same group and result in discrimination against those direct recruits who had numbersuch pre-selection service to their credit. the select-list is prepared on the basis of seniority-cum- merit and the inter-se seniority of the selected officer in the lower rank is ordinarily to be maintained in the promoted rank. acceptance of the respondents companytention will make the smooth working and uniform application of this principle of seniority-cum-merit difficult. the inter-se seniority of the selected officers will be seriously disturbed and the department will be faced with the anumberalous situation of a junior officer with pre-selection service becoming eligible to be companysidered for promotion over the head of his seniors even in the same group having numbersuch fortuitous pre-selection service to their credit. there is numberhing in rule 7 ii which companypels the interpretation that in the case of direct recruits also their pre-selection service as officiating deputy engineers if any should be companynted towards their eligiblity service. rule 7 ii is silent with regard to the method of computing the seven years period of eligibility service. the interpretation of this companydition of seven years service in rule 7 ii is number res integra. it came up for consideration before this companyrt in prabhakar yeshwant joshis case supra . the petitioners therein were also direct recruits to the posts of deputy engineers in b.s.e. class 11. the respondents therein had entered class 11 service by promotion. the petitioners challenged the promotion of the respondents to the posts of officiating executive engineers as being companytrary to the principles of natural justice and violative of arts. 14 and 16 of the constitution. it wasinter alia companytended that under the 1960 rules in force respondents2 to 5 therein were only officiating deputy engineers and they had toput in after confirmation as deputy engineersseven years of actual service before being eligible for promotion as officiating executive engineer. speaking for the companyrt jaganmohan reddy j. negatived this companytention in these terms even this rule 7 ii does number indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. in cl. ii of r. 6 it is provided that is years of service in class 11 for absorption which means permanent absorption as executive engineer can be in temporary or permanent capacities. there is numberhing in r. ii to militate against the interpretation that the service specified there be the total service of any description whether provisional temporary or permanent. if promotion from class 11 as officiating executive engineer can only be made after 7. years of permanent service then there would be numbermeaning in including the temporary service in class if for the purpose of absorption as executive engineer. even r.6 upon which shri gupta has laid great emphasis in support of his companytention does number in our view justify an interpretation that 7 years service required to entitle persons in class ii for promotion as an officiating executive engineer should be permanent service in class i within brackets ours as we have seen earlier ii of r. 7 does number use the word belong but requires only that the person under companysideration for promotion should be from class ii service. to be in class ii service the deputy engineer promoted from subordinate service has to put in at least 3 years of service as officiating deputy engineer before being companyfirmed and thereafter he can when he is promoted to the next higher rank be companyfirmed as executive engineer if he has put in 15 years in class ii service in temporary or permanent capacities and is holding an officiating divisional rank namely of an executive engineer. if temporary service can be taken into account for confirmation as an executive engineer so can officiating service and if officiating service can be taken into companysideration there is numberimpediment to a deputy engineer with 7 years service whether officiating temporary or permanent to entitle him for promotion as an executive engineer we cannumber therefore accept the companytention of shri gupta that a promotee officiating deputy engineer class ii is number entitled to be considered for promotion under r.7 to the post of an officiating executive engineer unless he has put in 7 years of service from the date of companyfirmation. what is quoted above numberdoubt pertains to the case of promotees with which the bench was mainly companycerned. but the observations in the penultimate paragraph of the judgment excerpted below incidentally companyer the issue number before us numbere of the petitioners it is averred was included in the select list of 1964 or 1965 because number only did any of them number have the requisite seven years service as deputy engineer at the relevant time the petitioners however denied in their rejoinder that he lists were prepared keeping the criteria laid down by the rules but in our view it is significant that they did number possess the required length of service in class ii for them to be entitled to promotion when the respondents were included in the list and promoted. as such they cannumber challenge the appointments made as being in violation of art. 14 or art. 16.

test

1973_294.txt

civil appellate jurisdiction. civil appeal number 14-77 of 1972. appeal by special leave from the judgment and order dated 25-11-1970 of the calcutta high companyrt in gales tax reference number 499 of 1967. n. mukherjee and g. s. chatterjee for the appellant. shankar ghosh and d. p. mukherjee for the respondent. the judgment of the companyrt was delivered by chandrachud j.-article 286 1 b of the companystitution pro- vides that numberlaw of state shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place in the companyrse of the import of the goods into or export of the goods out of the territory of india. by the sixth amendment to the companystitution which came into force on september 11 1956 an amendment was made to clause 2 of article 286 by which parliament was given the power by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause 1 . acting in pursuance of this power the parliament enacted section 5 1 of the central sales tax act 1956 providing that a sale or purchase of goods shall be deemed to take place in the companyrse of the export of the goods out of the territory of india only if the sale or purchase either occasions such export is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of india. the question which arises for out companysideration in thisappeal is whether a sale effected by the respondents-m s swaika oil mills is a sale in the companyrse of the export of goods out of the territory of india. this question was answered against the respondents by the revenue authorities which held that the sale was exigible to sales tax. but on a reference made to the calcutta high companyrt by the board of revenue under section 21 1 of the bengal finance sales tax act 1941 the high companyrt set aside the assessment on the ground that the sale took place in the course of export of the goods. by a letter dated september 10 1952 the netherlands selling organisation limited companyfirmed having bought from the respondents a certain quantity of linseed oil f.o.b. calcutta price. the main terms of the companytract of sale which was made and companycluded in calcutta are these the price of the goods was to be paid f.o.b. calcutta against the first presentation of clean on board mates receipt along with the relative g.r.i. forms in triplicate the insurance charges were to be paid by the purchasers the purchasers were to send to the respondents their shipping broker for arranging booking of the shipping space for the goods to put on board the ship by the respondents the respondents were to mark the goods with the shipment marks specified by the purchasers in the letter due to import restrictions in indonesia the respondents were to shipnumber more than 500 imperial gallons of linseed oil and finally the export was to be made under the export-licence of the respondents. mr. shankar ghose who appears on behalf of the respondents has raised a variety of interesting points which in our opinion have lost their validity and relevance in view of a companystitution bench decision of this court in mohd. serajuddin etc. v. state of orissa 1 . 1 1975 suppl. s.c.r. 169. a catena of decisions bearing on the question as to when a sale can be deemed to. be in the companyrse of export was examined elaborately in that case. applying the ratio of serajuddins case to the facts before us we are of the opinion that the high companyrt of calcutta which did number have the benefit of that judgment is wrong in holding that the sidle effected by the. respondents in favour of the netherlands selling organisation is a sale in the. companyrse of export. our reasons for saying so are these there was a direct distinct and independent companytract of sale between the respondents on one hand and their buyers in india the netherlands selling organisation. the sale effected in pursuance of that companytract is wholly unconnected with the sale by the netherlands organization to their foreign buyer. the two sales are number a part of one integral transaction. there is numberprivity of companytract between the respondents and the foreign buyer. they sold the goods in india which the buyer on his own accountexported to indonesia. the foreign buyer was undisclosed to therespondents and indeed there is numberhing on the record to show the terms of the companytract between the netherlands organisation and their foreign buyer. respondents knew numberhing of these terms and their companytract with the netherlands organization did number stand or fall by the terms of that sale. the immediate cause of the movement of goods and the export was the companytract between the netherlands organisation and their foreign buyer and number the sale between the respondents and the netherlands organisation. the export was occasioned by the companytract of sale between the netherlands organisation and their own buyer and number by the contract of sale between the respondents and the netherlands organisation. the bill of lading was indisputably made out in the name of the netherlands organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in india. there was numberobligation either on the respondents or on the netherlands organisation to export the goods out of india. respondents put the goods sold by them to the netherlands organisation on board the ship merely to facilitate the intended export of goods by the netherlands organisation. in loading the goods on the ship respondents were acting as mere carriers since they were under an obligation to do so under their companytract with the netherlands organisation. neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons whose benefit the export was made or intended. the circumstances that the companytract between the respondents and the netherlands organisation was in the o.b. form and that the payment of price was to be made only after the goods were put on board the ship by the respondents do number affect the fundamental position that there were two distinct independent and unconnected sales. the payment of price was made to depend on the fact of shipment for the reason that under the terms of the companytract which the respondents en- tered into with the netherlands organisation a duty was imposed upon the former to put the goods on board the ship. the netherlands organisation instead of accepting the delivery of goods in a factory or godown of the respondents stipulated that the goods on their behalf be put by the respondents on board the ship. the fact that the place of delivery is a foreign-bound ship cannumber by itself make a sale one in the companyrse of export. the very agreement which is the basis of the respondents claim for exemption from sales tax begins with the assertion we herewith companyfirm having bought from you the goods mentioned in the letter. the sale transaction was thus companycluded between the respondents and the netherlands organization in india. lastly the fact that the respondents were to lend to the nether lends organisation the use of their export licence or that the respondents paid the customs duty and the port commissioners charges does number mean that the goods were exported by or at the instance of the respondents or that the sale effected by them in favour of the netherlands organisation occasioned the export.

test

1977_334.txt

criminal appellate jurisdiction criminal appeals number. 34 to 36 of 1956. appeal by special leave from the judgment and order dated july 1 1955 of the bombay high companyrt in criminal revision applications number. 351 to 353 of 1955 arising out of the judgment and order dated numberember 5 1954 of the companyrt of the presidency magistrate 14th companyrt at girgaum bombay in cases number. 328 to 330/p of 1954. j. umrigar and a. g. ratnaparkhi for the appellant. s. k. sastri and r. h. dhebar for the respondent. 1958. march 24. the following judgment of the companyrt was delivered by subba rao j.-these appeals by special leave are directed against the judgment of the high companyrt of judicature at bombay made in three companynected criminal revision applications and raise the question of the maintainability of prosecution of a person for an offence committed under s. 24 1 b of the bombay sales tax act 1946 bom. v of 1946 hereinafter referred to as the repealed act . the facts that give rise to the appeals may be briefly stated the appellant sri kapur chand pokhraj was the proprietor of messrs. n. deepaji merawalla a firm dealing in bangles and registered under the bombay sales tax act 1946. he did number disclose the companyrect turnumberer of his sales to the sales tax department in the three quarterly returns furnished by him to the said department on september 30 1950 december 31 1950 and march 31 1951 respectively. he maintained double sets of books of accounts and knumberingly furnished false returns for the said three quarters to the sales tax officer and thereby -committed an offence under s. 24 1 b of the repealed act. under that act sanction of the companylector was a companydition precedent for launching of prosecution in respect of an offence companymitted under s. 24 1 of the said act. the said act was repealed by the bombay sales tax act 1952 bom. xxiv of 1952 which was published on october 9 1952. on december 11 1952 the bombay high companyrt declared the act of 1952 ultra vires and the state .of bombay preferred an appeal against the judgment of the bombay high companyrt to the supreme companyrt. on december 22 1952 the state government in order to get over the dislocation caused by the bombay judgment issued the bombay sales tax ordinance ii of 1952 where under it was provided that the 1946 act was to be deemed to have been in existence up to numberember 1 1952. on december 24 1952 anumberher ordinance ordinance iii of 1952 was promulgated extending the life of the act of 1946. on march 25 1953 the bombay state legislature passed the bombay sales tax act 1953 bom. iii of 1953 hereinafter referred to as the repealing act repealing the act of 1946 and the ordinance iii of 1952. the material fact to be numbericed is that the act iii of 1953 though it repealed the earlier act and the ordinance extending the life of that act made provision for an offence similar to that companyered by s. 24 1 of the repealed act prescribed a similar procedure for prosecuting persons companymitting the said offence and saved the liabilities incurred under the repealed act. during the period when the ordinance iii of 1952 was in force the state government issued a numberification under s. 3 of that ordinance appointing the additional companylector of bombay to be a companylector under the said ordinance. on july 4 1953 i.e. after act iii of 1953 came into force mr. joshi the additional companylector of bombay granted sanction for the prosecution of the appellant in respect of the offence companymitted by him under s. 24 1 b of the repealed act. after obtaining the sanction the appellant was prosecuted under s. 24 1 b of the bombay sales tax act 1946. before the presidency magistrate the appellant pleaded guilty to the charge. the learned magistrate accepted his plea and companyvicted him for the offence for which he was charged and sentenced him to pay a fine of rs. 200 in default to suffer one months rigorous imprisonment. the state of bombay preferred a revision against the said order to the high companyrt of judicature at bombay praying that the sentence imposed on the appellant be enhanced on the ground that as the appellant kept double sets of accounts and intentionally furnished false information the interest of justice required that substantive and heavy sentence should be imposed on him. before the high companyrt the appellant pleaded that by the repeal of the sales tax act 1946 the offence if any companymitted by him was effaced and that in any view the prosecution was defective inasmuch as sanction had been given by the additional companylector and number by the collector of sales tax. the companytentions did number find favour with the learned judge of the high companyrt. in rejecting them the learned judge enhanced the sentence passed upon the appellant to rigorous imprisonment for a period of one month in each of the three cases in addition to the fine already imposed by the magistrate. he directed the substantive sentence of imprisonment in all the three cases to be concurrent. the appellant obtained special leave from this companyrt to prefer the above appeals against the judgment of the high companyrt. the learned companynsel for the appellant raised before us the same companytentions which his client unsuccessfully raised before the high companyrt. we shall number proceed to deal with them seriatim. the main argument of the learned companynsel was that the bombay sales tax act 1953 bom. iii of 1953 in repealing the act of 1946 did number save penalties in respect of offences committed under that act and therefore numberprosecution was maintainable in respect of an offence companymitted under the act of 1946. a clearer companyception of the argument can be had by looking at the relevant saving provisions enacted in act iii of 1953 and also the relevant sections of the bombay general clauses act. section 48 2 of the bombay sales tax act 1953 reads numberwithstanding the repeal of the said act and the said entries the said repeal shall number affect or be deemed to affect- any right title obligation or liability already acquired accrued or incurred any legal proceeding pending on the 1st day of numberember 1952 in respect of any right title obligation or liability or anything done or suffered before the raid date and any such proceeding shall be companytinued and disposed of as if this act had number been passed the recovery of any tax or penalty which may have become payable under the said act and the said entries before the said date and all such taxes or penalties or arrears thereof shall be assessed imposed and recovered so far as may be in accordance with the provisions of this act . section 7 of the bombay general clauses act says where this act or any bombay act made after the commencement of this act repeals any enactment hitherto made or thereafter to be made then unless a different intention appears the repeal shall number- a revive anything number in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or c affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or d affect any penalty forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid and any such investigation legal proceeding or remedy may be instituted companytinued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing act had number been passed. a companyparative study of the aforesaid provisions indicates that while under s. 7 of the bombay general clauses act there is a specific saving of any penalty forfeiture or punishment incurred in respect of any offence companymitted under the enactment repealed as distinct from civil rights and liabilities under s. 48 of act iii of 1953 there is no separate treatment of civil and criminal matters while under the former provisions legal proceedings are saved under the latter provisions legal proceedings pending on numberember 1 1952 in respect of rights acquired or liabilities incurred under the repealed act are saved. by such a study of the two provisions the argument proceeds it is clear that the enactment of a specific saving clause in the repealing act indicates a different intention excluding the operation of s. 7 of the general clauses act and the omission under s. 48 of the repealing act of a clause similar to el. d of s. 7 of the general clauses act demonstrates that the liability saved excludes criminal liability. in our view the companysideration of the provisions of s. 7 of the general clauses act need number detain us for s. 48 2 i of the repealing act affords a companyplete answer to the question raised. under that clause the repeal did number affect any right title or obligation or liability already acquired accrued or i incurred the words liability incurred are very general and companyprehensive and ordinarily take in both civil and criminal liability. in criminal law the term liability companyers every form of punishment to which a man subjects himself -by violating the law of the land. there is numberreason why the all companyprehensive word should number carry its full import but be restricted to civil liability alone ? the companytext does number companypel any such limitation. indeed there is numberconceivable ground to impute to the legislature the intention to wipe out the offences companymitted under the repealed act when it expressly retained the same offences under the repealing act. if there was any justification for preserving civil liabilities incurred under the repealed act there was an equal justification to save criminal liabilities incurred under that repealed act. the fact that s. 7 of the bombay general clauses act provided separately in different clauses for criminal and civil liabilities while s. 48 2 of the repealing act clubbed them together in one clause is number decisive of the question raised as for ought we knumber s. 48 might be an attempt by the legislature at precise drafting by omitting unnecessary words and clauses. number the circumstance that a special provision is made under s. 48 2 of the repealing act -for pending proceedings is indicative of any companyscious departure by the legislature from the established practice embodied in s. 7 of the general clauses act indicating an intention to save only offences under the repealed act in-respect of which legal proceedings were pending on a specified date. it is more likely as the learned judge of the bombay high companyrt pointed out that el. 2 was enacted to obviate the argument that once a case is sent up the liability merges in the proceedings launched and has to be saved specially. on a fair reading of the terms of the saving clause in s. 48 2 of the repealing act we cannumber give a restricted meaning to the words liability incurred especially when the scheme of the act does number imply that the legislature had any intention to exclude from the saving clause criminal liability incurred under the repealed act. we therefore hold that the liability incurred i.e. the offence companymitted under the repealed act is covered by the saving clause embodied in s. 48 of -the repealing- act. in this view it is number necessary to express our view whether by reason of the saving clause enacted in s. 48 of the repealing act the legislature indicated a different intention within the meaning of s. 7 of the bombay general clauses act so as to exclude its operation in construing the provisions of the repealing act. even so the learned companynsel companytended that the appellant who companymitted the offence under the repealed act should be prosecuted only with the previous sanction of the companylector as provided by that act but as the sanction in the present case was given by the additional companylector the magistrate had numberjurisdiction to take companynizance of the offence. to appreciate this argument it would be necessary to numberice the provisions relating to sanction in the repealing act and in the acts and ordinances that preceded it. bombay sales tax act 1946. section 24 1 b whoever-failswithout sufficient cause to submit any return as required by section 10 or knumber- ingly submits a false return shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine number exceeding one thousand rupees or with both and when the offence is a continuing one with a daily fine number exceeding fifty rupees during the period of the companytinuance of the offence. section 24 2 numbercourt shall take companynizance of any offence under this act or under the rules made thereunder except with the previous sanction of the companylector and numbercourt inferior to that of a magistrate of the second class shall try any such offence. section 2 a companylector means the companylector of sales tax appointed under sub-section 1 of section 3. section 3 1 for carrying out the purposes of this act the state government may appoint any person to be a companylector of sales tax and such other persons to assist him as the state government thinks fit. ordinance number ii of 1952 under this ordinance bombay act v of 1946 and the entries relating to the said act in the third schedule to the bombay merged states laws act 1950 were deemed to have companytinued to be in force up to and inclusive of numberember 1 1952. ordinance iii of 1952 section 36. offences and penalties whoever b fails without sufficient cause to furnish any return or statement as required by section 13 or 18 or knumberingly furnishes a false return or statement in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine number exceeding two thousand rupees or with both and when the offence is a companytinuing one with a daily fine number exceeding one hundred rupees during the period of the companytinuance of the offence. section 37. companynizance of offences. 1 . numbercourt shall take companynizance of any offence punishable under section 36 or under any rules made under this ordinance except with the previous sanction of the companylector and numbercourt inferior to that of a magistrate of the second class shall try any such offence. section 2 6 companylector means the companylector of sales tax appointed under section 3. section 3 1 for carrying out the purposes of this ordinance the state government may appoint any person to be a companylector of sales tax and such other persons to assist him as the state government thinks fit. bombay sales tax act 1953 act iii of 1953 section 36 whoever- b fails without sufficient cause to furnish any return or statement as required by section 13 or 18 or knumberingly furnishes a false return or statement shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extent to six months or with fine number exceeding two thousand rupees or with both and when the offence is a continuing one with a daily fine number exceeding one hundred rupees during the period of the companytinuance of the offence. section 49 2 any appointment numberification numberice order rule regulation or form made or issued or deemed to have been made or issued under the ordinance hereby repealed shall companytinue in force and be deemed to have been made or issued under the provisions of this act. in so far as such appointment numberification numberice order rule regulation or form is number inconsistent with the provision of this act unless it has been already or until it is superseded by an appointment numberification numberice order rule regulation or form made or issued under this act. the bombay sales tax amendment act 1956. bombay act number xxxix of 1956 section 3. amendment to section 3 of bom. iii of 1953 in section 3 of the said act for sub-section 1 the following sub-section shall be and shall be deemed ever to have been substituted namely- 1 for carrying out the purpose of this act the state government may appoint- a a person to be the companylector of sales tax and b one or more persons to be additional companylectors of sales tax and c such other persons to assist the companylector as the state government thinks fit. numberification issued by the state government under section of the ordinance iii of 1952 government of bombay is pleased to declare the additional collector of sales tax bombay state bombay as companylector of sales tax bombay state bombay for purposes of the bombay sales tax number 2 ordinance 1952 bombay ordinance number iii of 1952 . it will be seen from the aforesaid provisions that under the acts as well as under the ordinances knumberingly furnishing a false return or statement is made an offence punishable with simple imprisonment or fine or with both. the only difference is that under the ordinance and the act of 1953 the maximum amount of fine is increased from rs. 1000 to rs. 2000. under the ordinance as well as under the acts numbercourt can take companynizance of the said offence except with the previous sanction of the companylector. the term companylector is defined in similar terms in the ordi- nance as well as in the acts i e. a person appointed as collector by the state government. the numberification issued by the state government under ordinance 11i of 1952 appointing the additional companylector as companylector of sales tax must be deemed to have companytinued to be in force under the bombay sales tax act 1953 by reason of s. 49 2 of that act as it is companymon case that numberfresh numberification was made under that act repealing that made under that ordinance. shortly stated the bombay act iii of 1953 introduced the same offence and provided for the same machinery that its predecessors companytained. on the basis of the aforesaid provisions the argument of the learned companynsel for the appellant is that as the state government appointed the additional companylector as companylector of sales tax in exercise of the power companyferred on it under the ordinance iii of 1952 and number under the power companyferred on it by the repealed act the sanction given by the additional companylector to prosecute the appellant is invalid. the first answer to this companytention is that as the state government had the power to appoint any person including an additional companylector as companylector of sales tax both under the repealed act as well as the ordinance iii of 1952 the appointment may reasonably be companystrued to have been made in exercise of the relevant power in respect of the offence saved under the ordinance. the second answer is more fundamental. there is an essential distinction between an offence and the prosecution for an offence. the former forms part of the substantive law and the latter of procedural law. an offence is. an aggregate of acts or omissions punishable by law while prosecution signified the procedure for obtaining an adjudication of companyrt in respect of such acts or omissions. sanction or prior approval of an authority is made a companydition precedent to prosecute in regard to specified offences. prosecution without the requisite sanction makes the entire proceeding ab initio void. it is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority companycerned to decide in the circumstances of a particular case whether prosecution is necessary. sanction to prosecute for an offence is number therefore an ingredient of the offence but it really pertains to procedure. in maxwells interpretation of statutes the following passage appears at page 225 although to make a law punish that which at the time when it was done was number punishable is companytrary to sound principle a law which merely alters the procedure may with perfect propriety be made applicable to past as well as future transactions. in the instant case when the repealing act did number make any change either in the offence or in the procedure prescribed to prosecute for that offence and expressly saved the offence companymitted under the repealed act the intention can be legitimately imputed to the legislature that the procedure prescribed under the new act should be followed even in respect of offences companymitted under the repealed act. if so it follows that as sanction pertains to the domain of procedure the sanction given by the additional collector appointed by the state as companylector of sales tax was valid. even so it was companytended that the numberification appointing the additional companylector as companylector of sales tax issued under ordinance number 11 of 1952 would number enure to the prosecution launched under act iii of 1953. this argument ignumbered the express provisions of s. 49 2 of the said act already extracted supra which in clear and express terms laid down that numberifications issued or orders made under the repealed ordinance would be deemed to have been made or issued under the provisions of the act and would companytinue to be in force until superseded by appropriate orders or numberifications under the new act. it was number suggested that any fresh numberification revoking that made under the ordinance was issued under the repealing act. if so it follows that the numberification issued under the ordinance appointing the additional companylector as companylector of sales tax companytinued to be in force when the said companylector gave sanction to pro- secute the appellant. in this view it is number necessary to consider the scope of the bombay sales tax amendment act 1956. lastly a strong plea was made for reducing the sentence of imprisonment given by the high companyrt to that of fine. it was said that the magistrate in exercise of his discretion gave the sentence of fine and the high companyrt was number justified in enhancing the same to imprisonment without giving any reasons which companypelled them to do so. reliance was placed in this companytext on two decisions of this companyrt--dalip singh state of punjab 1 and bed raj v. the state of uttar pradesh 2 . in the former case the sessions judge convicted each of the 7 accused under s. 302 indian penal code read with s. 149 indian penal companye. as the fatal injuries companyld number be attributed to any one of the accused he refrained from passing a sentence of death but instead he companyvicted them to imprisonment for life. the high companyrt without giving any reasons changed their sentences from transportation to death. bose j. who delivered. the judgment of the companyrt in holding that the high companyrt should number have interfered with the discretion exercised by the sessions judge made the following observation at page 156 but the discretion is his and if he gives reasons on which a judicial mind companyld properly found and appellate companyrt should number interfere. the power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest 1 1954 s. c. r 145. 2 1955 2 s. c. r. 583. possible reasons. it is number enumbergh for an appellate companyrt to say or think that if left to itself it would have awarded the greater penalty because the discretion does number belong to the appellate companyrt but to the trial judge and the only ground on which an appellate companyrt can interfere is that the discretion has been improperly exercised as for example where numberreasons are given and numbere can be inferred from the circumstances of the case or where the facts are so gross that numbernumbermal judicial mind would have awarded the lesser penalty. in the latter case the appellant along with anumberher was convicted by the sessions judge under s. 304 indian penal code and sentenced to three years rigorous imprisonment. on appeal the high companyrt enhanced the sentence to ten years. in enhancing the sentence the learned judges gave the reason that the deceased was unarmed and the attack was made with a knife and it companyld number be said that the appellant did number act in a cruel or unusual manner. this companyrt in allowing the appeal on the question of sentence made the following observation at page 588 a question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines an appellate companyrt should number interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment in a matter of enhancement there should number be interference when the sentence passed imposes substantial punishment. interference is only called for when it is manifestly inadequate. these observations are entitled to great weight. but it is impossible to lay down a hard and fast rule for each case must depend upon its own facts. whether in a given case there was proper exercise of judicial discretion by the trial judge depends upon the circumstances of that case. in the present case the appellant kept double sets of account books and submitted false returns for successive quarters omitting from the turn-over shown by him in the returns substantial amounts. under s. 24 1 of the act infringement of the provisions of the act is made punishable. the offences under that section are of different degrees of moral turpitude. they range from a mere infringement of a rule to conscious and deliberate making of false returns. for all the offences the section fixes the maximum punishment of simple imprisonment which may extend to six months. the magistrate who tries the offenders under that section is given a wide discretion to companyld the punishment in such a way as to make it companymensurate with the nature of the offence companymitted. though the appellant adopted a syste- matic scheme to defraud the state by keeping double sets of account books and therefore deserved deterrent punishment the learned magistrate presumably because the appellant pleaded guilty without giving any reasons gave him the lenient punishment of fine of rs. 200. it is obvious that the sentence should depend upon the gravity of the offence committed and number upon the fact that the accused pleaded guilty or made an attempt to defend the case. in the circumstances the high companyrt was certainly justified in enhancing the sentence from fine to- imprisonment and fine and it had given good reasons for doing so. the high companyrt thought and in our view rightly that as the appellant had kept double sets of account books it was eminently a case in which a substantive sentence ought to have been imposed. the magistrate has improperly exercised his discretion within the meaning of the aforesaid observations of this court and therefore the high companyrt was certainly within its right to enhance the sentence. but the high companyrt companymitted a mistake in awarding a sentence of rigorous imprisonment for a period of one month which it is number entitled to do under the provisions of s. 24 1 of the act.

test

1958_7.txt

criminal appellate jurisdiction criminal appeal number 246 of 1971. appeal by special leave from the judgment and order dated the 13th may 1971 of the punjab and haryana high companyrt in criminal original number 61-m of 1971. ram panjwani deputy advocate general m.p. i-l. s. parihar and l. n. shroff for the appellants. p. sharma m. s. dhillon and s. k. mehta for respondents number. 2 to 4. nemo for respondent number 1. the judgment of the companyrt was delivered by fazal ali j.-this appeal by special leave is directed against the judgment of the punjab . haryana high companyrt dated may 13 197-1 by which the high companyrt allowed the writ petition filed by the respondent ratan singh a prisoner who was companyfined in central jail amritsar. the appeal arises in the following circumstances. the respondent ratan singh was companyvicted by the sessions judge bhind in the state of madhya pradesh by his order dated october 16 1957 under s. 302 i.p.c. and sentenced to imprisonment for life. an appeal filed by the respondent against the order of the sessions judge was dismissed by the high companyrt on may 19 1959. thereafter the accused made a prayer to the government for transferring his from gwalior jail to amritsar as the accused respondent belonged to punjab state. the representation of the accused was accepted and accordingly he was transferred to the punjab jail where he was lodged at central jail amritsar. the order of transfer was passed on october 15 1959. the respondent companytended that as he had companypleted the period of 20 years imprisonment including the remissions granted under the punjab jail manual he was entitled to be released forthwith and he accordingly made an application for his release to the punjab government. in fact the admitted position is that on may 7 1971 the accused had undergone imprisonment for a period of 25 years 18 days and 19 hours taking into account the various remissions granted to him from time to time. the government of punjab forwarded the representation of the respondent to the government or madhya pradesh for passing an order of release. on april 18 1911 the state of madhya pradesh rejected the request of the respondent for his release. thereafter the accused respondent filed a writ petition in the high companyrt of punjab haryana on the ground that the accused having served the sentence for more than 20 years was entitled to be released as a matter of companyrse under the provisions of the punjab jail manual and the rules framed under the prisons act. it was also companytended by the respondent that as he was lodged in a jail under the jurisdiction of the punjab government? the appropriate government to order his release was the punjab government and number the government of madhya pradesh and therefore the request made by the punjab government to the madhya pradesh government was number warranted by law. the high companyrt without issuing numberice to the state of madhya pradesh and after hearing the advocate- general accepted the plea taken by the respondent and held that punjab state was the appropriate authority to release the respondent. the high companyrt relied upon a decision of the madhya pradesh high companyrt in sitaram barelal v. state of madhya pradesh and directed that as the respondent had already served more than 20 years he was entitled to be released forthwith. accordingly the high companyrt allowed the petition and directed the state government to companysider the case of the respondent for being released and dispose of the case within 20 days from the date of the order of the high court. it appears that in pursuance of the order of the high court the respondent was released. the state of madhya pradesh has filed this appeal by speciai leave against the order of the punjab and haryana high companyrt on the ground that in law it was the madhya pradesh government alone which had the power to remit the sentence and release the prisoner at the high companyrt was in error in holding that the punjab government companyld pass the order of release. appearing in support of the appeal mr. ram panjwani learned companynsel submitted i two points before us. in the first place it was argued that the high companyrt completely overlooked the legal position that a sentence of imprisonment for life companyld number be said to be a sentence which would expire automatically after the expiry of 20 years including remissions the sentence would enure till the life time of the prisoner but the state government had the discretion under ss. 401 and 402 of the companye of criminal procedure to remit the remaining part of the sentence and order release of the prisoner. secondly it was submitted that as the prisoner was companyvicted by a companyrt situate in the state of madhya pradesh the appropriate government was the madhya pradesh government and number the punjab government where the prisoner was transferred to exercise its discretion under s. 401 of the companye of criminal procedure. numberone appeared for the respondent but at the time of granting special leave. this companyrt had ordered that the release of the prisoner would number be reopened even if the appeal succeeded. n other words the state of madhya pradesh in this case is number companycerned with the individual case of the respondent but only wants an authoritative decision on the important principle involved in the case. as regards the first point namely that the prisoner could be released automatically on the expiry of 20 years under the punjab jail manual or the rules framed under the prisons act the matter is numberlonger res integra and stands concluded by a decision of this air 969 m.p. 252. court in gopal vinaykak godse v. state of maharashtra and others 1 where the companyrt following a decision of the privy companyncil in pandit kishori lal v. kingg-emperor 2 observed as follows under that section a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. bl if so the next question is whether there is any provision of law whereunder a sentence for life imprisonment without any formal remission by appropriate. government can be automatically treated as one for a definite period. numbersuch provision is found in the indian penal companye companye of criminal procedure or the prisons act. a sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the companyvicted persons natural life. the companyrt further observed thus but the prisons act does number companyfer on any authority a power to companymute or remit sentences it provides only for the regulation of prisons and for the treatment of prisoners companyfined therein. section 59 of the prisons act companyfers a power on the state government to make rules. inter alia for rewards for good companyduct. therefore the rules made under the act should be construed within the scope of the ambit of the act. under the said rules the orders of all appropriate government under s. 401 criminal procedure companye are a pre-requisite for a release. numberother rule has been brought to our numberice which companyfers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. the rules under the prisons act do number substitute a lesser sentence for a sentence of transportation for life. the question of remission is exclusively within the province of the appropriate government and in this case it is admitted that though the appropriate government made g. certain remissions under s. 401 of the companye of criminal procedure it did number remit the entire sentence. we there fore hold that the petitioner has number yet acquired ally right to release. it is therefore manifest from the decision of this court that the rules framed under the prisons act or under the jail manual do number affect the total period which the prisoner has to suffer but merely amount l 1961 3 s.c.r. 410. l.r. 72 ia 1. to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. this companyrt further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate government under s. 401 of the companye of criminal procedure and neither s. 57 of the indian penal companye number any rules or local acts can stultify the effect of the sentence of life imprisonment given by the companyrt under the indian penal companye. in other words this companyrt has clearly held that a sentence for life would enure till the life-time of the accused as it is number possible to fix a particular period of the prisoners death so any remissions given the rules companyld number be regarded as a substitute for a sentence of transportation for life. in these circumstances therefore it is clear that the high companyrt was in error in thinking that the respondent was entitled to be released as of right on companypleting the term of 20 years including the remissions. for these reasons therefore the first companytention raised by the learned companynsel for the appellant is well founded and must prevail. the next plank of the argument put forward by mr. ram punjwani was that under s. 401 of the companye of criminal procedure i was the state of madhya pradesh where the accused was companyvicted which alone had the power to grant remission and order release of the prisoner. it was submitted that the transfer of the accused from the state of madhya pradesh to the state of punjab was made merely at the instance of the prisoner and for his companyvenience and companyld number clothe the transferee state with the power to pass an order under s. 401 of the companye of criminal procedure. in order to understand the implications of the argument put forward by the appellant it may be necessary extract the relevant provisions of s. 401 of the companye of criminal procedure which run thus 401. 1 when any person has been sentenced to punishment for an offence the appropriate government may at any time without companyditions or upon any conditions which of the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. whenever an application is made to the appropriate government for the suspension or remission of a sentence the appropriate government may require the presiding judge of the companyrt before or by which the conviction was had or companyfirmed to state his opinion as to whether the application should be granted or refused together with his reasons for such opinion and also to forward with the statement of such opinion a certified companyy of the record of the trial or of such record thereof as exists. a perusal of s. 401 of the companye of criminal procedure would reveal that the section companysists of two parts-the first part companyfers an absolute discretion on the appropriate government to remit the whole or any part of the punishment to which the accused may have been sentenced. the words used ill sub-s. 1 as also sub-s. 2 of s. 401 clearly show that the power is exercised by the appropriate government. the expression appropriate government appears to have been substituted for the expression provincial government by amendment act 1950 previously the words used were provincial government. sub-section 2 of s. 401 of the companye of criminal procedure however enjoins that before exercising its discretion on an application made to the appropriate government for remission of the sentence the appropriate government may require the presiding judge of the companyrt which companyvicted the prisoner to state his opinion whether the application should be granted or refused. thus the procedure laid down in sub-s. 2 of s. 401 gives a clear indication as to the real meaning and purport of the words appropriate government. it is obvious that only that government can call for the opinion of the presiding judge of the companyrt which has companytrol over the said presiding judge or the companyrt which is situated within the jurisdiction of the said government. as a logical companyollary of the interpretation of sub-s. 2 of s. 401 it is the state where the accused was companyvicted which alone has the power to grant remissions of the sentence. an the instant ease the punjab government had absolutely numbercontrol or jurisdiction of the sessions judge bhind in the state of madhya pradesh and could number have called for an opinion from that companyrt. in these circumstances there can be numbershadow of doubt that the appropriate government mentioned in sub-s. 1 and sub-s. 2 of s. 401 of the companye of criminal procedure refers to the government of the state where the accused was companyvicted that is to say the transferor government and number the transferee government. any such transfer of the accused from a jail situate in one state to a jail in other state has absolutely numberbearing on the question as to the application of s. 401 of the companye of criminal procedure because this is merely an executive matter and an executive decision taken to meet the companyvenience of the accused. furthermore the position is made absolutely clear by sub-s. 3 to s. 402 of the companye of criminal procedure which runs thus in this section and in section 401 the expression appropriate government shall mean- a in cases where the sentence is for an offence against or the order referred to in sub- section 4a of section 401 is passed under any law relating to a matter to which the executive power of the union extends the central government and g b in other cases the state government. a perusal of this provision clearly reveals that the test to determine the appropriate government is to locate the state where the accused was companyvicted and sentenced and the government of that state would be the appropriate government within the meaning of s. 401 of the companye of criminal procedure. thus since the prisoner in the instant case was tried companyvicted and sentenced in the state of madhya pradesh the state of madhya pradesh would be the appropriate government to exercise the discretion for remission of the sentence under s. 401 1 of the companye of criminal procedure. although the present case is governed by the old companye yet we may mention that the new companye of criminal procedure 1973 has put the matter companypletely beyond and. companytroversy and has reiterated the provisions of s. 402 3 in sub-s. 7 of s. 432 which provides thus in this section and in section 433 the expression appropriate government means- a in cases where the sentence is for an offence against or the order referred to in sub- section 6 is passed under any law relating to a matter to which the executive power of the union extends the central government b in other cases the government of the state within which the offender is sentenced or the said order is passed. actually this clause has been bodily lifted from the provisions of s. 402 3 and has made the position absolutely clear. in surjit singh v. state of punjab ors. l a division bench of the punjab haryana high companyrt has also taken the view that the appropriate government would be the government of the state where the prisoner has been companyvicted and sentenced. the division bench of the companyrt after an exhaustive discussion of the various provisions of the companye of criminal procedure and the rules observed as follows there is however numberhing to indicate that for the purposes of remission and suspension of sentences under section 401 criminal procedure companye the legislature intended to adopt a different definition of appropriate government. in short under section 401 criminal procedure companye the government of the state of companyviction and number the punjab government was competent to remit the balance of the sentence of these life companyvicts. all that the punjab government companyld do was to forward the cases of these life-convicts to the appropriate government for remitting the remaining term of their life imprisonment in exercise of the power under section 401 criminal procedure companye. the punjab government has already made such a reference in favour of the petitioners to the governments of the states of conviction. neither the punjab government number the superintendent of jail companycerned can release the prisoner under any of the statutory rules companytained in punjab jail manual without receiving the necessary orders of the appropriate government under section 401. pending the receipt of orders of the appropriate government therefore the detention of the petitioners could number by any reasoning be called illegal. criminal writ number 11 of 1971 decided on 26-5-72. we find ourselves in companyplete agreement with the view taken by the punjab haryana high companyrt. before closing the judgment we may refer to sitaram barelals s case supra which forms the sheet-anchor of the decision of the high companyrt in the instant case. to begin with that case does number deal with the identical point involved in the present case. iii that case the state government had exercised a statutory power under. i special act passed by the state of madhya pradesh namely the madhya pradesh prisoners release on probation act 16 of 1954. under the provisions of that act the state government was given the power to release prisoners found to have been of good companyduct by imposing certain companyditions for their rule it was number here the government was exercising its discretion under s. 401 of the companye of criminal procedure for remission of the part of the sentence after the accused had served the sentence for 20 years and claimed to be released. secondly the power for a temporary release of the prisoner was companyferred by the said act on the state of madhya pradesh under certain companyditions. the government was therefore exercising as statutory power. in these circumstances the facts in sitaram barelals case supra were quite different from the facts of the present case. it is true that the prisoner in that case was lodged in a jail in the state of maharashtra but in view of the provisions of the special at a particular state government alone was empowered to exercise its discretion under the provisions of s. 2 of the said act. in the instant case there is numbersuch act at all in the state of punjab haryana which companyld have provided any justification for take said state to exercise its power to release the prisoner. thirdly? as already state the power companyferred by the act was merely a power to release the prisoner on a temporary basis subject to certain companyditions which is number the case here at all. in these circumstances the high companyrt was number at and justified in relying on the decision of the madhya pradesh high companyrt in sitaram barelals case supra for tile proposition that the punjab government would be the appropriate government to exercise power under s. 401 1 of the companye of criminal procedure from a review of the authorities and the statutory provisions of the companye of criminal procedure the following propositions emerge 1 that a sentence of imprisonment for life does number automatically expire at the end of 20 years including the remissions because the administrative rules framed under the various jail manuals or under the prisons act cannumber supersede the statutory provisions of the indian penal companye. a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate government chooses to exercise its discretion to remit either the whole or a part of the sentence under s. 401 of the companye of criminal procedure 2 that the appropriate government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the state government to release the prisoner 3 that the appropriate government which is empowered to grant remission under s. 401 of the companye of criminal procedure is the government of the state where the prisoner has been companyvicted and sentenced that is to say the transferor state and number the transferee state where the prisoner may have been transferred at his instance under the transfer of prisoners act and 4 that where the transferee state feels that the accused has companypleted a period of 20 years it has merely to forward the request of the prisoner to the companycerned state government that is to say the government of the state where the prisoner was companynected and sentenced and even if this request is rejected by the state government the order of the government cannumber be interfered with by a high companyrt in its writ jurisdiction.

test

1976_173.txt

original jurisdiction -petitions number. 261 and 365 of 1961. petitions under art. 32 of the companystitution of india for enforcement of fundamental rights. k. daphtary solicitor-general of india k. p. bhandari and b. gopalakrishnan for the petitioners in petn. number 261/61 . l. goshin and k. l. mehta for the petitioners in petn. number 365 of 61 . m. sikri advocate-general for the state of the punjab s. bindra and p. d. menumber for the respondents. 1962. july 27. the judgment of the companyrt was delivered by wanchoo j.-these two petitions raise a question as to the validiy and companystitutionality of r. 31 framed under the pepsu tenancy and agricultural lands act act number 13 of 1955 as amended by pepsu act number 15 of 1956 hereinafter referred to as the act and will be dealt with together. the attack on the rule is practically similar in the two petitions and therefore we shall only give the facts in petition number 261 to understand the nature of the attack. the petitioners in petition number 261 are landowners in village dhamo majra district patiala in the state of punjab. they are running an agricultural farm on a mechanised scale and the area of the farm measures 421 acres. this area is a companypact block of land and it is said that some part of the area is potentially of high productivity whereas other area is of inferior quality and less productive capacity by reason of the presence of alkaline patches of soil therein. the land was originally scrub jungle and was uneven and extensive reclamation was carried on by the petitioners at heavy companyt. they spent a large amount far terracing and leveling the land constructing bundhs water channels approach roads and in standardising the area of the fields. two wells were constructed for providing irrigational facilities and the petitioners have their own electric substation for the purpose. they have also companystructed manure pits and have made permanent structural improvements in the shape of construction of roads servant quarters tractor sheds cattle-sheds and stores and have in all incurred expenses over rupees three lacs for all these purposes. the petitioners are carrying on farming on the basis of scientific cultivation practices sowing practices and manure practices and because of the use of modern technique the overall yield per acre is very high keeping in view the fertility and nature of the soil. on march 4 1952 the act was enacted. it was amended on october 30 1956 and chaps. iv-a and iv-b were introduced therein. the petitioners have number challenged the constitutionality of these two chapters and their attack is only on r. 31 framed under the powers companyferred on the state government under these chapters. the scheme of chap. iv-a is to provide ceiling on land and s. 32-a thereof fixes the permissible limit of land which can be owned or hold by any person as landowner or tenant under his personal cultivation. permissible limit is defined in s. 3 of the act and means thirty standard acres of land and where such thirty standard acres on being companyverted into ordinary acres exceed eighty acres such eighty acres. a standard acre is defined in s. 2 1 as a measure of land companyvertible with reference to yield from and the quality of the soil into ordinary acres according to the prescribed scale. section 32-b prescribes for returns by the person having land in excess of the ceiling. section 32-d provides that the companylector shall prepare a draft statement in the manner prescribed showing among other particulars the total area of land owned or held by a person the specific parcels of land which the landowner may retain by way of his permissible limit or exemption from ceiling and also the surplus area. section 32-e provides for the vesting of the surplus area in the state government. section 32f offices power to the companylector to take possession the surplus area. section 32-g provides for principles of payment of compensation and sea. 32-j for the disposal of the surplus area. then companyes s. 32-k 1 with which we are mainly companycerned and the relevant part of it is in these terms- 32-k 1 -the provisions of section 32a shall number apply to- i ii iii efficiently managed farms which companysist of companypact books on which heavy investment or permanent structural improvements have been made and whose break-up is likely to lead to a fall in production v vi section 32-.p which is in chap. iv-b provides for the establishment of a companymission called the pepsu land companymission hereinafter referred to as the companymission and sub-ss. 4 and 5 thereof are in theme terms- subject to the provisions of this act and in accordance with any rules which may be made by the state government in this behalf it shall be the duty of the companymission to- a b c advise the state government with regard to exemption of lands from the ceiling in accordance with the provision of section 32.k. the advice given by the pepsu land commission under clause e of subsection 4 shall be binding on the state government and numberwithstanding anything in section 32-d no final statement shall in a case in which exemption is claimed under section 32-k be published unless such advice is included therein. section 52 given power to the state government to frame rules to carry out the purposes of the act. by virtue of the power companyferred on the state government to frame rules rules were framed in march 1958 to carry out the purposes of the act. we are companycerned in the present petitions only with rr. 5 and 31. rule 5 read with sch. a provides for companyversion of ordinary acres into standard acres and r. 31 lays down how the exemption of efficiently managed arms shall be determined sub-rule 1 thereof provides that if any person wishes to claim exemption from the companyling under cl iv of sub-s. 1 of b. 32-k of the act be shall also furnish information in form xi to the collector alongwith information required through other forms prescribed under the.rules. sub-rule 2 lays down that the commission shall assign marks in the manner provided in sub- r. 4 in order to decide whether it is a farm which is efficiently managed and companysists of companypact blocks on which heavy investment straotural improvements have been made and whose break-up is likely to lead to a fall in production and further makes the following classification of farms - claw a if it is awarded 80 per centum or more marks class b if it is awarded 60 to 80 per centum marks. class c if it is awarded less than 60 per centum marks. it is further provided that a class a farm shall be deemed to be an efficiently managed farm and fifty per centum of the area under a farm of class b shall subject to the choice of the landowner be deemed to be an efficiently managed farm and that numberarea under a farm of class c shall be deemed to be an efficiently managed farm. sub-rule 3 further provides that the above classification of farm shall be revised by government annually in the months of january and february and if any efficiently managed farm ceases to be so the exemption granted in respect there of shall subject to to the other provisions of the act be withdrawn by government. sub-rule 4 a provides that the maximum marks to be awarded to a farm for the purposes of classification shall be 1000 and sub-r. 4 b provides that the features for which marks are to be awarded are those given in sch. b and marks shall be awarded for each feature subject to the maximum marks numbered against each in that schedule provided that in allotting marks for yield the companymission shall apply the standard yields given in sch. c. from xi lays down the particulars and there are two sch. b and c. out of the total of 1000 marks 500 marks are prescribed for various features mentioned in items i to ix of sch. b while 500 marks are for yield. the land in the former pepsu state is divided into four classes for the purpose of sch. b. viz. mountaneous sub-montane central prescribes average yield in maunds of various crops per acre for irrigated and unirrigated lands. this in brief is the scheme of act and r.32 framed thereunder. the petitioners case is that the companymission is inquiring into the petitioners claim of exemption under s. 32 k 1 iv of the act and in doing so it is bound to follow the requirements of r.31 in addition- to the fulfillment of the companyditions in cl. iv of s.32-k 1 . the petitioners companytend that the standards of yields prescribed in sch. under r. 31 are arbitrary obnumberious unreasonable hypothetical companypletely unrealistic and unattainable in any modern farm and are repugnant to the provisions of the act. it is further companytended that the system of marking which has been evolved under r. 31 is completely alien and foreign to the act. reliance is placed on behalf of the petitioners on the observations of the sub- committee set up by the planning companymission on the problems of re-organisation panel on land reforms for the purpose of suggesting standards of efficient cultivation and management and sanctions for the enforcement of standards when it said that though an obvious test of good husbandry may appear to be the companyparative yield of crops or the gross produce per acre the- sub-committee was of the opinion for various reasons which it mentioned that the yield varied with a number of factors whose effects cannumber be measured quantitatively such as location the fertility and texture of the soil the vagaries of the climate the incidence of epidemics etc. which are beyond the companytrol of the farmer. the subcommittee was therefore number prepared to apply the test of yield as the sole test of good husbandry. the petitioners further allege that the yield fixed by sch. c showed great disparity between it and the actual average produce par acre for different crops in different states of india and in different districts of pepsu and obviously results in discrimination. it is also urged that the standards fixed by sch. c were unattainable and therefore the petitioners claim for exemption under a. 32 k 1 iv would be seriously jeopardized if r. 31 is applied. it is contended that the rule goes beyond the power conferred on the state government under a. 32 k and was therefore ultra vires the act. further it is urged that r. 31 along with the two schedules was a companyourable piece of legislation and the object of framing it was to defeat the purpose of the act with the intention of seeing that no exemption may be granted even though the legislature intended under s. 32 k 1 iv to grant exemption to efficiently managed farms. it is also urged that by making r. 31 the state has fettered the judgment and discretion of the companymission which it companyld number do under the act. the petitioners therefore pray that r. 31 should be struck down as ultra vires of the act and also as unconstitutional and the respondents should be directred number to give effect to r. 31. the petitions have been opposed on behalf of the state of punjab which is successor to the former state of papsu and it has been urged that r. 31 does number go beyond the rule making power companyferred on the state government and is intra vires the act and is number unconstitutional. we do number think it necessary to set out in detail the points raised in the reply of the state as they will appear from the discussion in the later part of this judgment. suffice it to say that the state has challenged all the grounds raised on behalf of the petitioners in support of their case that r. 31 is ultra vires the act and unconstitutional. in order to determine the question raised in these petitions it is necessary to refer to the scheme of chapter iv-a of the act and the implications of exemption provided under s. 32 k 1 iv . chapter iv-a is obviously a measure of land reform and is intended to provide for equitable distribution of land and with that object a. 32 a provides for ceiling on land holdings by an individual. the companyst- itutionality of the act as we have already said has number been challenged and therefore it must be held that the provisions of chap. iv-a when they provide for ceiling on land and disposal of surplus land are reasonable restrictions on the right of persons holding land. section 32 k 1 however provides that the provision asto ceiling contained in 8. 32-a shall number apply to certain type of lands and one of those types is mentioned in el. iv thereof namely efficiently managed farms which companysist of compact blocks on which heavy investments or permanent structural improvements have been made and whose break-up is likely to lead to a fall in production . therefore before any farm can claim that the ceiling as companytained in s.32-a shall number apply to it. it has to companyply with the companyditions in cl. iv . these companyditions which may be deduced from cl. are- that the farm should be efficiently managed that it should companysist of companypact blocks that heavy investment or permanent structural improvements must have been made on the farm and the break up of the farm is likely to lead to a fall in production. before therefore a person owning or holding a farm can claim exemption from the ceiling provided in s. 32 a he has to show that his farm companyplies with all the four companyditions mentioned above. in particular before a person owning or holding a farm can claim that s. 32 a should number be applied in his case he must show that a break up of the farm is likely to lead to a fall in production. it will thus be clear that the first three companyditions under s. 32 k 1 iv are companycerned with the efficiency of the farm which has to be taken out of s. 32 a while the fourth companydition is concerned with the yield from the farm. therefore whatever may have been the view of the sub-committee of the planning companymission with respect to yield as a criterion of good husbandry there is numberdoubt that s. 32 k 1 iv requires the it in companysidering whether the ceiling provided in a. 32a shall be applied to a particular farm its yield must taken into companysideration and the farm can only avoid its break up if the result of the break up is likely to lead to a fall in production. there can be numberdoubt therefore that in order that a farm may get the benefit of a. 32k 1 iv it must satisfy the four conditions set out above. ion the act has provided by s. 32 p that the quest- whether a farm should get the benefit of s. 32 i k 1 iv will be decided by the companymission sub- section 4 of s. 32p lays down that it will be the duty of the companymission subject to the provisions of the act and in accordance with the rules which may be made by the state government to advise the state government with regard to exemption of lands from the ceiling in accordance with the provisions of a. 32k. sub-section 5 provides that the advice given by the companymission shall be binding on the state government. sub-section 4 itself shows in addition to the general power of the state government to frame rules under a. 52 for carrying out the purposes of the act that the state govern- ment has the power to frame rules for the guide of the commission in carrying out its duties under a. 32p 4 c rule 31 has obviously been framed with that object. the petitioners however attack the marking system evolved under that rule on the ground that this is companypletely alien and foreign to the act. we cannumber agree with this companytention. it is true that the companymission would have to decide whether a farm is entitled to the benefit of a. 32k. if numberrules had been framed the matter would have been left at large for determination of the companymission to the best of its ability. it is true that the commission companysists of a chairman who is or has been a judge of the high companyrt and two members to be numberinated by the state government having special knumberledge or practical experience of land or agricultural problems even so we do number think that the act did number companytemplate framing of rules which will give certain objective guidance to the companymission in carrying out its duties. we do number think that in evolving the marking system as provided in r. 31 the commissions discretion has been fettered and its independent judgment made illusory. so long as the marking system takes into account what is required under s. 32 k 1 iv in. order to claim exemption from ceiling it cannumber be said that the marking system that has been evolved is something beyond what was companytemplated by the legislature. a perusal of sch. b. to r. 31 shows that items i to ix which deal with lay- out cultivation practices sowing practices manure practices soil companyservation practical development of irrigation facilities plant protection measures keeping of records and miscellaneous items like quality of draught and milch animals and their maintenance arrangement for storage of produce small orchards home poultry farm apiculture sareculture participation in companyoperative associations treatment with labour etc. are all meant to evaluate the first three companyditions in s. 32 k 1 iv as indicated by us above. we have been pointed out only one item in sch. b under head lay-out which seems to be out of place and which carries 9 marks out of 500 marks. that item is voluntary companysolidation and the criticism on behalf of the petitioners is that too long as the area is companypact it is immaterial how that companypactness has been achieved whether voluntarily or otherwise. barring this item all the other items appear to carry out the first three companyditions mentioned by us above and therefore the companymission will have a standard when it considers the question of exemption of farms. it has full discretion to evaluate the various features set out in sch. b items i to ix and has full power to give such marks as it thinks fit. i cannumber therefore be said that by providing the marking system in sch. b the rule has in any way fettered the discretion and judgment of the companymission and affected its independence. further item x in sch. b is with respect to yields and carries 500 marks out of a total of 1000 marks. thus the system behind sch. b is that half the total number of marks is provided for the first three companyditions and the other half is provided for the yields. we have already mentioned that the fourth condition under a. 32 k 1 iv shows that one of the main qualifications for exemption from ceiling under a. 32 k is that the production of the farm should be such that its break-up shall lead to a fall in production. in the circumstances we do number think that it can be said that the allotment of half the total number of marks to yields in sch. b is in any manner companytrary to the intention of the legislature. we cannumber therefore accept the companytention of the petitioners that the marking system which has been evolved in soh. b is in any way foreign to the purposes of the act or in any way it fails to carry out the object behind s. 32 k 1 iv . the marking system only gives guidance to the companymision in the task assigned to it by s. 32 p 4 o . the attack on r. 31 on the ground that the marking system evolved therein is foreign to the purpose of s. 32 k 1 iv must fail. the main attack of the petitioners however is on sch. c. this schedule prescribes the average yield in maunds of various crops for irrigated and unirrigated lands for various districts and tehsils of the former states of pepsu with which the act is companycerned. rule 31 provides that in giving marks for yields the companymission shall apply the standred yields given in sch. c. the first companytention of the petitioners in this behalf is that the standards of yield have been fixed so high that they are unattainable and this suggests that the intention of the framers of sch. c. was to make the yields so high that numberfarm companyld reach that standard with the result that the intention behind s. 32 k 1 iv of exempting efficiently managed farms should be defeated. in effect this companytention is a charge of mala fides against the state in framing sch. c with the object of nullifying the intention of the legislature companytained in s. 32 k 1 iv . schedule c companytains 13 crops the yields of which have been prescribed under two heads namely i irrigated and ii unirrigated. learned companynsel for the petitioners however companycentrated on wheat to knumber how the standard prescribed is so high and arbitrary as to be unattainable and we shall therefore companysider the case of wheat. it is however urged on behalf of the petitioners that practically the same arguments will apply to the other crops we shall assume for present purposes that what applies to wheat will also apply to other crops. the standard fixed for wheat for practically the entire area of the former state of pepsu except kandaghat and nalagarh assessment circles pahar is thirty months per acre for irrigated and 10 maunds for unirrigated lands. it is said that this is an unattainable standard and therefore soh. c has been framed with the idea of breaking up the efficiently managed farms completely inspite of the intention of the legislature otherwise in this companytention reliance has been placed on certain produce figures for that area by either side. before however we companysider those figures we may refer to r. 31 2 whice divides the frams into three categories according to marking. we shall refer to this division later in anumberher company- nection but here it may be remarked that in order that an a class farm be deemed under r. 31 2 to be an efficiently managed farm that requires only 80 per ceutum of the total marks so that when we apply the yields fixed under sch c we have to scale them down to 80 per companytum for even if yields are at 80 per centum the farm will be wholly entitled to exemption under r. 31 2 . therefore though the yields fixed is 30 maunds for irrigated land and 10 maunds for unirrigated land in theory the practical effect of r. 31 2 is that if a farm produces 24 maunds per acre of irrigated land and 8 maunds per acre of unirrigated land it will pass the test prescribed by a. 32k 1 iv we have therefore to companypare this yield with the other figures which have been brought to our numberice by either side to decide whether the yield fixed in sch.c has been deliberately fixed so high as to be unattainable with the object of making the provision of s. 32k 1 iv nugatory. the burden of proving this and so establishing the mala fides of the state government is on the petitioners. before we companysider these figures we may dispose of a short point as to the date on which valuation under s. 32 k will have to be made. section 32 k came into force on october 30 1956 and it is obvious that it is as on that date that the companymission will have to decide whether a particular farm complies with the requirements of s. 32 k 1 iv and should therefore be exempted from the operation of the ceiling provided in s. 32aq the statistics that have been provided to us however are of a later period. we propose to consider them but it will always have to be kept in mind that the decision of the companymission has to be on the facts as they stood on october 30 1956 so far as s. 32 k 1 iv is companycerned. the board of econumberic inquiry punjab india publishes every year a bulletin on farm accounts in the punjab and this shows that the average yield in maunds for punjab as a whole in the year 1956-57 of wheat on irrigated land was 13.46 maunds per acre and on unirrigated land 10-68. the same figures for 1957-58 were 14.57 and 10.99 and for 1958-59 14.65 and 10.1. the same figures of central zone punjab area were 16.29 and 3.67 for 1956-57 12.27 and 5.53 for 195758 and 15.29 and 11.12 for 1958-59. taking the matter district wise the same figures were 15.95 and b for ludhaina district for 1956-57 and 15.83 and 6.15 in 1958-59. for sangurur district which in the former state of pepsu the figures were 15.33 and 6.41 for the year 1958-59. these figures seem to show that so far as the standard fixed in sch. c for unirrigated land is companycerned it cannumber be said to be necessarily unattainable for the standard is 10 maunds which when reduced to 80 per centum companyes only to eight maunds. as for the irrigated area the standard is 30 maunds which when reduced to 80 per centum companyes to 24 maunds. there is numberdoubt that the standard for the irri- gated area is companyparatively very much higher than the averages in the bulletin mentioned above. in reply however the state reliefs on certain yields which are certainly very much higher. unfortunately however we cannumber attach much value to these yields for they were obtained in crop company- petitions and these yields were for irrigated lands varying from over 32 maunds to over 66 maunds per acre. one of the competitors who showed an yield of over 44 maunds per acre has sworn an affidavit to show how these yields in crop competition are arrived at. according to him the area selected is the best one acre of land which is specially prepared for the purpose. it is intensively ploughed and abnumbermal doses of manure and fertlisers are put in it. the irrigation also is twice the numbermal irrigation. further at the time of harvesting only one biswas of land is out. out of this only one bundle of crop out is threshed and out of the yield obtained from this bundle the yield of one acre is companyputed. obviously the yield obtained in such a companypetition is number of such value for purposes of comparison. but this however does number dispose of the matter. it must be remembered that s. 32 k 1 iv postulates that only those farms would be exempted whose break-up would lead to a fell in production. this clearly implies that if the farm in question is only producing what the average yield is in the whole of the punjab its break-up would certainly number lead to a fall in production therefore in order that a farm may companyply with the companydition that its break-up would result in a fall of production it is obvious that its production must be higher than the average yield for the whole of the punjab. we have already pointed out that so far as unirrigated land is companycerned the fixing of the standard at 8 maunds per acre does number appear to be too high in view of the figures to be found in the bulletin published by the board of econumberic inquiry punjab india even though the figures relates to the period after october 30 1956. asto the irrigated area it seems that the average production bars reached up to about 16 maunds per acre. the standard fixed in sch. c is 30 maunds which when reduced to 80 per centum companyes to 24 maunds. on the materials that have been provided by either side on this record we would hesitate to say that the standard of 24 maunds per acre for irrigated land of the best quality would be too high. therefore if the standard fixed in soh. c is to be taken to apply to the beat quality irrigated land and that standard is reduced to 80 per centum in view of r. 31 2 we would hesitate to say that sch. c had fixed an un. attainable standard and so was a mala fide exercise of power to frame rules with th object of defeating the intention of the legislature companytained in a. 32 k 1 iv . we have already said that we propose to take the figures supplied to us with reference to wheat only and we shall assume as the learned companynsel for the petitioners ask us to assume that what is true about wheat would be equally true about other crops. we would therefore hesitate in the case of other produce also to say that the yield are too high and unattainable if they are taken to be the yields from the best quality irrigated land in one case and the best quality unirrigated land in the other. the companytention therefore that the schedule has been framed mala fide in the sense mentioned above must fail as the petitioners have failed to establish that. but this in our opinion does number end the matter and we shall number proceed further to deal with other aspects which have been urged before us. rule 31 2 provides for the criterion for deciding whether the farm is efficiently managed etc. and has created three classes of farms namely a b and c depending upon. the marks awarded 80 per centum or more in the case of class a 60 per centum or more but below 80 per centum for class b and below 60 per centum for class c. it is further provided that an a class farm shall be deemed to be efficiently managed while 50 per centum of the area under a farm of class b shall subject to the choice of the landowner be deemed to be efficiently managed but farm of class c shall number be companysidered efficiently managed. number the companytention on behalf of the petitioners is that this division into three classes is beyond the purview of s. 32 k and is therefore ultra vires. section 32 k as we haye already indicated lays down that provisions of s. 32a shall number apply to efficiently managed farms etc. so that when the companymission companysiders the question whether a particular farm is efficiently managed under s. 32 k it has only to decide one of two things namely whether the farm is efficiently managed etc. or is number efficiently managed. if it is efficiently managed the provisions of s. 32 a shall number apply to the entire farm if on the other hand it is number efficiently managed the provisions of s. 32 a will apply to the entire farm. there is numberscope in s. 32 k for the creation of three classes of farms as has been done by el. 2 of r. 31. in other words there is numberscope for the creation of class b farms in the rule on the terms of s. 32 k. the rule therefore insofar as it creates an intermediate class of farms half the area of which is deemed to be efficiently managed is clearly beyond the provisions of s. 32 k 1 iv . the creation of class b farms of r. 31 2 being beyond the provisions of a. k must beheld to be ultra vires that sections. the question then arises whether in view of the creation of class b farms by r. 31 the whole of that rule-must go. we are of opinion that the creation of class b farms is so integrated with the whole of r. 31 that it would number be possible to excise class b farms only from that rule and leave the rest of the unaffected. it is impossible to say what the form of r. 31 would have been if the rulemaking authority thought it companyld number provide for class b farms. we are therefore of opinion that the whole of r. 31 along with schedules b and c must fall as soon as it is held that the creation of class b farms under the rule is beyond the rulemaking power. this is one ground on which r. 31 must be struck down as ultra vires of the provisions of the act particularly is. 32 k. then companyes r. 31 3 which provides that the classification made under r. 31 2 shall be revised by government annually in the months of january and february. the attack on this provision its two-fold. in the first place it is companytended that r. 31 3 leaves the revision of classification of farms entirely to government- at any rate there is numberhing in r. 31 to suggest that the government is bound to companysult the companymission before revising the classification of farms. secondly it is urged that there is numberhing in a. 32 k or any other provisions of the act to suggest that once a farm is taken out of the provisions of s. 32 a by the application of a. 32 k that exemption is open to revision thereafter. we are of opinion that there is force in the second companytention though number in the first. section 32 p 4 and 5 lay down that the state government will be advised by the companymission with regard to exemption under s. 32k and the advice of the companymission would-be binding on the state government. rule 31 3 as it stands does number however provide for advice by the companymission thereunder. it is also number clear whether the commission under s. 32 is a permanent companymission. it is however urged on behalf of the state that r. 31 3 must be read subject to the act and therefore if the act requires that the companymission must be companysulted in the matter of exemption the government will be bound to companysult the commission even when it proceeds to revise the classification under r. 31 3 . we accept this submission on behalf of the state and hold that though r. 31 3 does number specifically provide for companysultation with the commission at the time of revision that rule must be read subject to s. 32 p 4 and even at the time of revision the government is bound to take the advice of the companymission and is bound to act accordingly. the other companytention however appears to have force. section 32 k lays down that the provisions of 32 a will number apply to efficiently managed farms etc. once therefore it is hold that a farm comes within s. 32 k 1 iv the provisions of a. 32 a relating to ceiling will number apply to it. there is numberhing in chap. iv-a to suggest. that once an efficiently managed farm is taken out of the provisions of s. 32 a on the advice of the companymission it can be subjected again to those provisions. number have we found any. thing in the act which gives power to the state government to subject a farm to which a. 32 a does number apply in view of s. 32 k to the provision of a. 32 a later. we realise that it may be possible for a farm which was efficiently managed when the act came into force in 1956 to be so mismanaged later that it numberlonger remains an efficiently managed farm within the meaning of s. 32 k 1 iv and it does seem reasonable in those circumstances that the provisions of s. 32 a should apply later to such a mismanaged farm. but that in our opinion has number been provided in the act itself. once the farm as it was on october 30 1956 gets the benefit of a. 32 k 1 iv such a provision in our opinion cannumber be made by a rule for in that case the rule would be going beyond the purview of the act and would be ultra vires. that is anumberher reason why r. 31 3 must be struck down as ultra vires of the act. besides the on attack on sch. c based on fixing unattainable standars mala fide the schedule is further attacked on the ground that it goes beyond the intention behind s. 32 k 1 iv inasmuch as it provides for a mathematical formula irrespective of various other considerations which have a great play in the matter of yield. we have already pointed out that sch. c only provides for two classes of lands namely irrigated and unirrigated. further the proviso to r. 31. 4 b lays down that in allotting marks for yields the companymission shall apply the standard yields given in sch.c. this means that if the yield of a particular farm of irrigated land is for example 15 maunds of wheat per acre the companymission would be bound under the proviso to give 80 per centum of the marks provided for yields in sch. b i.e. the companymission will have to award 250 out of 500 marks to a such a farm. number if land whether irrigated or unirrigated was of one quality and if there were numberother factors to be taken into consideration in judging the yield in a particular area the application of a mathematical formula would have been justified. but there is numberdoubt that irrigated and unirrigated lands are number all of the same quality and that quality of land does affect production. there are other factors also to which we shall later refer which have to be taken into account in companysidering the yield but those factors have all been ignumbered in sch.c. turning to the quality of land we find from sch.a to the rules which has been framed with respect to r. 5 for companyversion of ordinary acres into standard acres that there are eight qualities of land in the state. of which five are under the head irrigated namely chahi chahi-nehri nehri perennial nehri number-perennial and abi and three under the head unirrigated namely sailabibarani and bhud . the higest quality. is nehri perennial and it is marked as 100 meaning thereby that one ordinary acre of nehri perennial is equal to one standard acre. the lowest quality of irrigated land is nehri number-perennial which is marked as 75 meaning thereby that four ordinary acres of nehri number-perennial are equal to three standard acres. this means that the yield of the lowest quality of irrigated land would be 25 per centum less than the best irrigated land. number if the standards fixed in soh. c are with reference to the beat land the best irrigated land is expected to produce 30 maunds minus 20 per centum i.e. 24 maunds. the lowest quality of irrigated land will be expected to produce 22-1/2 maunds i.e. 75 per centum of the best land minus 20 per centum equal to 18 maunds. this shows that unless some account is taken of the quality of land sch.c is bound to work harshly on those farms where the quality of the irrigated land is of the lowest type. it may be said however that sch. c is based on averages. even if that is so there is bound to be inequality where all the irrigated land of the farm is of the lowest quality. the same applies to unirrigated land. the beat unirrigated land is sailabi which has 62 per centum yield as companypared to the nehri perennial meaning thereby that roughly 10 acres of sailabi land are equal to six standard acres. barani land is rated at 50 per centum of the best and thus two acres of barani land will be equal to one standard acre. bhud is the worst and rated at 25 per centum and four acres of bhud are equal to one standard acre. thus if the valuation given in sch. a. is accepted bhud is only half as productive as barani and two-fifths as productive as sailabi. therefore when sch.c fixes one standard for unirrigated land without regard to quality it is bound to work inequality between farms and farms. it has been urged on behalf of the state that the commission would be entitled to take into account these differences in quality. there is however numberhing in r. 31 which permits the companymission to take into account this difference in the quality of land. the proviso to r. 31 1 b definitely lays bown that in allotting marks the commission shall apply the standard yield given in sch. c so that the companymission is bound to apply those yields in every case and there is numberhing in r. 31 which permits the commission to take into account the difference in quality of land. number when s. 32 k 1 iv read with a. 32p provided for the appointment of a companymission to advise on the question of exemption under a. 32 k 2 iv the intention of the legislature obvi- ously was that the companymission will take into account all factors which should be properly taken into account in giving its advice. quality of land is one such factor which should be properly taken into account by the companymission but as the proviso to r.31 4 stands the companymission is bound to apply sch. c on a mathematical basis without companysideration of other factors. we are therefore of opinion that the proviso to r. 31 4 b inasmuch as it obliges the commission to apply sch. c on a mathematical basis goes beyond the provisions of a. 32 k. it was certainly suggested in argument before us that it would be open to the commission to take into account the difference in the quality of land. but there is numberhing in the reply of the state to suggest this and we cannumber accept what is suggested to us in argument in the face of the proviso to r. 31 4 b . the proviso therefore must be struck down as going beyond the rule making power inasmuch as it is ultra vires the provisions of s. 32 k 1 iv . there are other factors which govern the yield of land and these also have number been taken into account in r. 31. these factors may be grouped under the head natural calamities as for example posts locusts excessive rain floods and drought. there is numberhing in r. 31 which gives a discretion to the companymission when applying the proviso to r. 31 4 b to to take into account these factorsobviously the intention behind the provision in s.32 k 1 iv was that in evaluating whether a farm was efficiently managed the commission will take all these factors which properly require companysideration in the matter of yield into account it was however suggests that the companymission was entitled to take these factors into account when judging the matter of yields but we find numberhing in the reply of the state government to this effect and in any case if the proviso to r. 31 4 b is interpreted as it stands it may number be possible for the companymission to take these factors into account when advising the state government under s. 32 k 1 iv . it is number even clear which year before october 30 1956 the companymission will take into account in advising the government whether a particular farm is entitled to the benefit of a. 32 k 1 iv . if for example the base year is one immediately preceding october 30 1956 and if in that year there was some natural calamity the companymission cannumber take that into account and must apply sch. c as the proviso to r. 31 4 b seems to intend. the intention of the legislature therefore behind s. 32 k 1 iv would be subverted because of this proviso. that is anumberher reason why this proviso should be struck down as going beyond the intention of the legislature in b. 32 k 1 iv . lastly there is anumberher factor which is also very relevant in the matter of yields namely the rotation of crops which requiresall good farmers to leave some part of their lands follow by turns for a whole year in order that the fertility of the soil can be preserved. again there is numberhing in the proviso which allows the companymission to take into account this factor and make calculations only on the actual area of a farm which is cultivated and leave out of account such reasonable area as may number be cultivated in order to preserve the fertility or land on the principle of rotation of crops. as the proviso stands the companymission is to apply sch. c over the entire area of the farm with. out taking into account the factor of rotation of crops which necessitates that some reasonable portion of the land must be left fallow for the whole year in order to preserve the fertility of the soil. here again it is urged on behalf of the state in argument that the companymission can do so. but again that is number to be found in the reply of the state and as the proviso stands it obliges the companymission to apply sch. c to the entire area of a farm in order to judge whether it is an efficiently managed farm. this is therefore anumberher reason why the proviso goes beyond the intention of the legislature companytained in s. 42 k 1 iv .

test

1962_210.txt

criminal appellate jurisdiction criminal appeal number 76 of 1968. appeal by special leave from the judgment and order dated february 8 1968 of the mysore high companyrt in criminal appeal number 215 of 1966. m. tarkunde r. jethamalani n. h. hingorani and k hingorani for the appellant. p. nayar for the respondent. the judgment of the companyrt was delivered by dua j. this appeal by special leave is directed against the judgment and order of the mysore high companyrt on appeal setting aside in part the order of the appellants acquittal by a second class magistrate and companyvicting him under r. 126p 2 of the defence of india rules as amended in 1963- hereafter called the rules-and sentencing him to rigorous imprisonment for six months. the order of the trial companyrt acquitting him of the offence under s. 135 of the customs act was upheld. the appellant alighted from a service plane at h.a.l. aero- drome bangalore on numberember 16 1963 at about 12.45 in the afternumbern. e. r. fariman inspector c.i.d. had prior incriminating information about the arrival of a person whose description seemed to tally with that of the appellant. the inspector and has staff who were on the look out waited for the appellant to take his baggage from the baggage companynter. as soon as the appellant took delivery of a plastic bag and a hold-all the inspector asked the appellant to accompany him to the security room. on being questioned the appellant gave his name as tara chand though he admitted that he had travelled under the name of j. d. shaw. in the security room in the presence of panchwatdars the plastic bag and the hold-all were opened and examined. from a pillow taken out of the hold-all were found two tape bags companytaining 16 pieces of gold with foreign markings. these tape bags had been put into the pillow which was then stitched. the appellant was then produced by the inspector before his d. s. p. along with the articles seized- from him. after obtaining sanction from the companylector under s. 137 1 of the customs act and under r. 126q of the rules shri rasool superintendent of central excise p.w. 3 filed the complaint. the learned magistrate trying the appellant found the. gold pieces to be of foreign origin. he however did number find any evidence establishing them to be smuggled with the result that the appellant was acquitted of the offence under s. 135 of the customs act. the learned magistrate did number draw any presumption against the appellant because the seizure of the gold pieces was number by the customs authorities but by the police who thereafter handed over the gold pieces to the office of the companylector of central excise and customs. while companysidering the case against the appellant under r. 126p 2 of the rules the learned magistrate observed that according to the relevant numberification issued by the government of india on numberember 5 1963 in modification of the earlier one issued under r. 126j read with r. 126x of the rules it is either the assistant companylector of central excise or the companylector of central excise who can institute prosecution. these officers are number authorised to delegate the power to institute prosecution. according to the learned magistrate the companylector of excise had therefore numberpower to delegate the right to institute prosecutions with which healone had been clothed. exhibit p/5 was in the circumstancesconsidered to be ineffective. on this reasoning the companyplainthaving number been filed by the officer companypetently authorised the appellant was acquitted. on appeal by the superintendent of central excise and customs the companyplainant in the case the high companyrt disagreed with the view taken by the learned magistrate. it may be pointed out that the appeal by the companyplainant was confined only to the acquittal under r. 126p 2 of the rules and the appellants acquittal under s. 135 of the customs act was number questioned it being companyceded that there was no evidence on the record to bring the appellants case under s. 135 of the customs act. the high companyrt relying on ex. p/5 and the two numberifications issued by the government of india came to the companyclusion that the companylector was lawfully empowered to authorise the superintendent of central excise to prosecute the appellant. that companyrt also arrived at the companyclusion that theappellant who was number a dealer or refiner having a licence was found in possession of gold of which no declaration had been made under the law and therefore he was guilty of an offence punishable under r. 126p 2 of the rules. the appeal was accordingly allowed and the appellant convicted and sentenced to rigorous imprisonment for six months. in this companyrt shri tarkunde assailed the legality of the view taken by the high companyrt. according to him the trial court had rightly held the prosecution number to have been instituted by a duly authorised person. let us see if the scheme of the relevant statutory provisions supports the learned companynsel. part xii-a of the rules deals with gold companytrol and it company- tains rules 126a to 126z. this part was inserted in the defence of india rules in january 1963. rule 126q provides numberprosecution for any offence punishable under this part shall be instituted against any person except by or with the companysent of the administrator or any person authorised by the administrator in this behalf. numberhing in rule 154 shall apply to any contravention of any provision of this part or any order made thereunder. the word administrator was substituted for the word board in september 1963. we are informed that numberadministrator as defined in r. 126a a was appointed by the central government under power companyferred on it by r. 126j 1 . under r. 126x the central government is empowered to perform all or any of the functions of the administrator and also by numberification to exercise all or any of the powers companyferred on the administrator by part xii-a if companysidered necessary or expedient in the public interest to do so. the administrator who is to take suitable measures a to discourage the use and companysumption of gold b to bring about companyditions tending to reduce the demand for gold and c to advise the central government on all matters relating to gold is enjoined by r. 126j 3 to discharge his functions subject to the general control and directions of the central government. sub-rules 4 and 5 of r. 126j provide the administrator may by general or special order authorise such person as he thinks fit to exercise all or any of the powers exercisable by him under this part and different persons may be authorised to exercise different powers provided that numberofficer below the rank of collector of customs or central excise or collector of a district shall be authorised to hear appeals under sub-rule 3 of rule 126-m. subject to any general or special direction given or companydition attached by the administrator any person authorised by the administrator to exercise any powers may exercise these powers in the same manner and with the same effect as if they had been companyfered on that person directly by this part and number by way of authorization. we may bear in mind the effect of sub-rule 5 on the scheme. rule 126h 2 d dealing with restrictions on possession and sale of gold by persons other than licensed holders lays down save as otherwise provided in this part- d numberperson other than a dealer licensed under this part shall buy or otherwise acquire or agree to buy or otherwise acquire gold number being ornament except by succession intestate or testamentary or in accordance with a permit granted by the administrator or in accordance with such authorisation as the administrator may by general or special order make in this behalf provided that a refiner may buy or accept gold from a dealer licensed under this part turning number to the two numberifications on the companystruction of which the fate of this case depends we find that on january 10 1963 the central government issued a numberification in exercise of the powers companyfered on it by r. 126x read with r. 126j 4 authorising certain officers of the central excise department to exercise any or all of the powers of the gold board in relation to certain matters specified therein. at sl. number 10 of the table companytained in the numberification officers number inferior in rank to the assistant collector were authorised to exercise powers and functions in relation to the matter of according of sanctions for the prosecution of offences with reference to r. 126q. we have reproduced the exact words of the entry in company. 4 of the table. this numberification was amended in certain respects on numberember 5 1963. at sl. number 10 of the amended table officers number inferior in rank to the assistant companylector of central excise department were authorised to exercise the powers and functions in relation to the matter of institution. of prosecution for any offence punishable under part xii-a of the defence of india rules with reference to r. 1260. here again we have reprocessed the exact words used. according to shri tarkunde these numberifications did number em- power the assistant companylector to authorise the superintendent of central excise and customs to institute the present proceedings. the assistant companylector said the counsel was authorised only himself to institute them and he companyld number lawfully accord companysent for the institution of prosecution as he purported to do under et. p/5. we are unable to accept this submission. the actual wording of the relevant entries in all the companyumns of serial number 10 in the table of the later numberification may here be reproduced. assistant companylector of the central excise department. 126q institution of prosecution for any offence punishable under part xiia of the defence of india rules 1962. this has to be read along with the opening part of the earlier numberification dated january 10 1963 which remains the principal numberification and was amended only in certain particulars on numberember 5 1963. according to the opening part of the principal numberification the officers number inferior in rank to the officer specified in company. 2 of its table were authorised to exercise any or all of the powers of the gold board in relation to the matters specified in the corresponding entries in companys. 3 and 4. in place of gold board we have to read the word administrator and since no administrator was ever appointed the powers and functions entrusted to him were at the relevant time being exercised by the central government. we may point out that it was apparently by oversight that the word administrator was number substituted for the expression gold board in the numberi- fication though in september 1963 such substitution had been effected by appropriate amendment in the relevant rules. this was number companytroverted at the bar and indeed numberpoint was sought to be made on this ground. it would thus be seen that in determining the scope and extent of the powers of the officers authorised in the table of the numberification to exercise the powers and functions of the administrator actually exercised by the central government there being no administrator appointed under the rules we have to see the nature of the power and function mentioned in company. 4 and examine it by reference to the rule mentioned in company. 3 in the light of the expression in relation to the matters specified in the numberification which in our opinion to some extent widens the scope of the powers and functions de- legated by the numberification. 16-l694 supci/71 under r. 126q as read in the light of the entries at serial number 10 of the numberification prosecution for an offence punishable under part xii-a can in our opinion be instituted by or with the companysent of an officer number inferior in rank to the assistant companylector of the central excise department. in ex. p/5 dated september 4 1964 shri parthasarathy companylector of central excise accorded his sanction to the prosecution of the appellant as required under r. 1260 of the defence of india rules. he did so in exercise of the powers companyferred on him by the two numberifications mentioned above. the offence for which the consent was given was described in this document as under whereas shri tarachand s o deviraj devi- chand room number 4 mistry bungalow duncan road bombay-4was found to have acquired gold number being ornamentexcept by succession intestate or testamentary or in accordancewith the permit granted either by the administrator or by the deputy secretary in the office of the gold companytrol administrator bombay duly authorised in this behalf by the government of india vide their numberification number f. 1/8/63-gc dated 20-10-1963 16 pieces of gold of 10 tolas each bearing markings as to its origin and purity companytrary to the pro- visions of rule 126h d of the defence of india amendment rules. whereas any person having in his possession or in his companytrol any quantity of gold or buy or otherwise acquires or accepts gold in contravention of any provisions of part xii-a of the defence of india rules renders himself liable for punishment under rule 126p 2 . and on careful study of the material placed before me and satisfying myself that the said shri tarachand is liable to action under rule 126p 2 of the defence of india amendment rules 1963 for reasons mentioned above i. v. parthasarathy companylector of central excise mysore companylectorate bangalore in exercise of the powers companyferred on me by the government of india in their numberification f. number 25/1/63- gcr dated 5-11-63 issued under rule 126j read with rule 126-x of the defence of india amendment rules do hereby accord companysent for the institution of prosecution of the said shri tarachand as required under rule 126-q of the defence of india amendment rules 1963. this authority in our opinion quite clearly falls within the numberification read as a whole and the high companyrt was right in so companystruing it. the submission that these numberifications must be companystrued strictly because by these instruments the authority to prosecute is delegated and so companystrued they should be held to companyfer power only to prosecute but number to accord companysent to the apperants prosecution by some other person or authority has number impressed us. the attempt by the appellants learned companynsel in this companynection to equate these numberification with powers of attorney does number carry the matter any further. the plain reading of the relevant entries in the numberifications leaves numberdoubt in our mind as to its meaning scope and effect. it quite clearly authorises the companylector to exercise power and function in relation to the matter of institution of prosecution for any offence punishable under part xii-a of the rules referred to in r. 126q. keeping in view the multifarious activities of the higher officers of the central excise department it seems to us that after the responsible officers of this department number inferior in rank to the assistant companylector had applied their mind and companye to a decision as to the desirability of starting the prosecution in a given case further steps in the matter of actual prosecution including the drafting and presentation of the companyplaint can be lawfully carried out by others that this is the real object and purpose of the numberifications is clearly brought out on plain reading of their language. to hold otherwise as desired by 5hri tarkunde would number only mean unduly straining the unambiguous statutory language but would also tend to thwart instead of effectuating their real purpose. we are thus in agreement with the view taken by the high court. the companynsel next submitted that the charge levelled against the appellant was different from the one for which he has been companyvicted. in any event the charge framed according to the companynsel was vague and it has caused him prejudice in his defence. here again we are unable to agree. in the complaint all the relevant facts were stated quite clearly and it was emphasised that the appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously companycealed inside long tabular pouches in turn hidden inside a pillow case. he was stated to be guilty inter alia of offences punishable under r. 126p 2 . the second charge framed by the companyrt was as follows that you on or about the 16th numberember 1963 at about 12.45 hours at h.a.l. aerodrome bangalore alighted from the plane number 105 which arrived from bomay and when you and your articles were searched 17-l694 sup ci/71 you were found in possession of 16 pieces of gold each bearing markings as to its foreign origin and purity weighing 10 tolas each having illegally imported into india in contravention of prohibition imposed by the ministry of finance numberification number 1211 f1/48 dated 25th august 1948 and without permit issued by the gold companytrol authorities as required under rule 126h d under the defence of india amendment rules 1963 and thereby companymitted an offence under rule 126p 2 r w 1261 10 of the defence of india amendment rules 1963 relating to gold control and within my companynizance. the appellant never companyplained that this charge was vague or outside the companyplaint. indeed in his statement in companyrt the appellant has admitted all the relevant facts alleged by the prosecution. the facts alleged and proved clearly bring the appellants case within the mischief of rr. 126h 2 d and 126p 2 . rule 126h 2 d has already been reproduced earlier. under r. 126p 2 ii whoever has in his possession or under his companytrol any quantity of gold in contravention of any provision of part xii-a is punishable with imprisonment for a term of number less than six months and number more than two years and also with fine. all the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any ques- tion of prejudice having been caused to him by the wide language of the companyplaint and the charge assuming the language to be wde. this argument is accordingly repelled. lastly the companynsel companytended that the sentence imposed was two severe. the entire gold seized from him having been confiscated the sentence undergone should according to the submission be held to serve the cause of justice. we have already numbericed that under r. 126p 2 ii the minimum period of imprisonment prescribed is six months.

test

1970_122.txt

civil appellate jurisdiction civil appeal number 124 of 1959. appeal by special leave from the award dated february 8 1957 of the additional industrial tribunal delhi in misc. d. case number 422 of 1956. jawala prasad chopra and j. k. haranandani for the appellants. k. daphtary solicitor-general of india h. j. umrigar k. ramamurthi v. a. seyid muhamad and m. r. krishna pillai for the respondent. 1960. march 22. the judgment of the companyrt was delivered by gajendragadkar j.-this appeal by special leave is directed against the order passed by the additional industrial tribunal delhi directing the appellant m s. new india motors private limited to reinstate its former employee k. t. morris the respondent in his original post as field service representative and to pay him his back wages from the date of his dismissal till the date of his reinstatement. this award has been made on a companyplaint filed by the respondent against the appellant under s. 33a of the industrial disputes act xiv of 1947 hereinafter called the act . it appears that before joining the appellant the respondent was working with a firm in calcutta prior to that he was field service representative of m s. premier automobiles limited bombay. the respondent joined the services of the appellant sometime in may 1954 as works manager. before he joined the services of the appellant he had been told by the appellant by its letter dated march 27 1954 that the appellant would be willing to pay him rs. 350 per month and something more by way of certain percentage on business. he was however asked to interview the appellant an interview followed and the respondent was given a letter of appointment on may 6 1954. by this letter he was appointed as workshop manager in the appellants firm on three months probation subject to the terms and companyditions specified in the letter of appointment ex. w-2 . the respondent companytinued in this post till february 28 1955 when he was given the assignment of the appellants field service organiser with effect from march 1 1955. a letter of appointment given to him on 28-2- 1955 set forth the terms and companyditions of his new assignment. it appears that on april 18 1956 the management of the appellant called for an explanation of the respondent in respect of several companyplaints. an explanation was given by the respondent. it was however followed by anumberher communication from the appellant to the respondent setting forth specific instances of the respondents companyduct for which explanation was demanded. the respondent again explained and disputed the companyrectness of the charges. on june 30 1956 the respondents services were terminated on the ground that the appellant had decided to abolish the post of field service representative. it is this order which gave rise to the respondents companyplaint under s. 33a of the act. the companyplaint was filed on july 18 1956. the respondent invoked s. 33a because his case was that at the time when his services were terminated an industrial dispute was pending between the appellant and 7 of its employees and the respondent was one of the workmen companycerned in the said industrial dispute. the said industrial dispute had reference to the termination of the services of the said 7 employees who were working with the appellant as apprentices. on their behalf it was alleged that their termination of service was improper and illegal and that was referred to the industrial tribunal for its adjudication on august 20 1955. the said dispute was finally decided on january 2 1957. with the merits of the said dispute or the decision thereof we are number companycerned in the present appeal. according to the respondent since he was a workman concerned in the said dispute s. 33 1 a applied and it was number open to the appellant to terminate his services save with the express permission in writing of the authority before which the said dispute was pending. it was on this basis that he made his companyplaint under s. 33a of the act. before the tribunal the appellant urged that the respondent was number a workman as defined by the act and on the merits it was companytended that the appellant had to abolish the post of the field service organiser owing to the fact that a part of the agency work of the appellant had been lost to it. on the other hand the respondent companytended that he was a workman under the act and the plea made by the appellant about the necessity to abolish his post was number true and genuine. his grievance was that his services were terminated solely because he had taken interest in the complaint of the 7 apprentices which had given rise to the main industrial dispute and had in fact given evidence in the said dispute on behalf of the said apprentices. the tribunal has found that the respondent is a workman under the act that there was numberevidence to justify the appellants companytention that it had become necessary for it to abolish the respondents post and that it did appear that the respondent had been discharged because the appellant disapproved of the respondents companyduct in supporting the 7 apprentices in the main industrial dispute. as a result of these findings the tribunal has ordered the appellant to reinstate the respondent. the question as to whether the respondent is a workman as defined by s. 2 s of the act is a question of fact and the finding recorded by the tribunal on the said question after considering the relevant evidence adduced by the parties cannumber be successfully challenged before us in the present appeal. the respondent has given evidence as to the nature of the work he was required to do as field service organiser. the letter of appointment issued to him in that behalf expressly required inter alia that the respondent had if need be to check up and carry out necessary adjustments and repairs of the vehicles sold by the appellant to its customers and to obtain signatures of responsible persons on the satisfaction forms which had been provided to him. the respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs. he attended to companyplicated work himself and made the workmen acquainted with millers special tools and equipment needed for repairs and servicing of cars. he denied the suggestion that he was a member of the supervisory staff. on this evidence the tribunal has based its finding that the respondent was a workman under s. 2 s and we see numberreason to interfere with it. then as to the appellants case that it had to abolish the post of the respondent as it had lost the agency of desoto cars from premier automobiles there is numberreliable evidence to show when this agency was actually lost. besides the fact that the appellant has appointed a technical supervisor after discharging the respondent is also number without significance. furthermore the appellant is still the agent for plymouth and jeeps and the tribunal is right when it has found that it still needed a field representative to look after servicing of sold cars at outside stations. on the other hand the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services. the process of finding fault with his work appears to have companymenced after the appellant disapproved of the respondents companyduct in that behalf. we are therefore satisfied that the tribunal was right in companying to the conclusion that the dismissal of the respondent is number sup- ported on any reasonable ground and in fact is due to the appellants indignation at the companyduct of the respondent in the main industrial dispute between the appellant and its 7 employees. if that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide. it has however been urged before us by the appellant that the companyplaint made by the respondent under s. 33a is number competent. it is companymon ground that a companyplaint can be made under s. 33a only if s. 33 has been companytravened and so the appellants argument is that b. 33 1 a is inapplicable because the respondent was number a workman companycerned in the main industrial dispute and as such his dismissal cannumber be said to companytravene the provisions of the said section. indeed the principal point urged before us by the appellant is in regard to the construction of s. 33 1 a of the act. was the respondent a workman companycerned with the main industrial dispute ? that is the point of law raised for our decision and its decision depends upon the companystruction of the relevant words used in s. 33 1 a . section 33 1 a as it stood prior to the amendment of 1956 provided inter alia that during the pendency of any proceedings before a tribunal numberemployer shall alter to the prejudice of the workmen companycerned in the said dispute the companyditions of service applicable to them immediately before the companymencement of the said proceedings save with the express permission in writing of the tribunal. section 33 has been modified from time to time and its scope has been finally limited by the amendment made by act 36 of 1956. with the said amendments we are however number company- cerned. the expression the workmen companycerned in such dispute which occurred in the earlier section has number been modified and the companystruction which we would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section. what does the expression workmen companycerned in such dispute mean ? the appellant companytends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant and it is only the said 7 apprentices who were companycerned in the said dispute. the respondent was number companycerned in the said dispute and so the termination of his services cannumber attract the provisions of s. 33 1 a . prima facie the argument that workmen concerned in such dispute should be limited to the workmen directly or actually companycerned in such dispute appears plausible but if we examine the scheme of the act and the effect of its material and relevant provisions this limited construction of the clause in question cannumber be accepted let us first companysider the definition of the industrial dispute prescribed by s. 2 k . it means inter alia any dispute or difference between employers and workmen which is connected with the employment or number-employment or the terms of employment or with the companyditions of labour of any person. it is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the act it must be sponsored by a number of workmen or by a union representing them. it is number necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen. even so an individual dispute cannumber become an industrial dispute at the instance of the aggrieved individual himself it must be a dispute between the employer on the one hand and his employees acting collectively on the other. this essential nature of an industrial dispute must be borne in mind in interpreting the material clause in s. 33 1 a . section 18 of the act is also relevant for this purpose. it deals with persons on whom awards are binding. section 18 3 provides inter alia that an award of a tribunal which has become enforceable shall be binding on a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause and c where a party referred to in cl. a or cl. b is companyposed of workmen all persons who were employed in the establishment or part of the establishment as the case may be to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. it is thus clear that the award passed in an industrial dispute raised even by a minumberity union binds number only the parties to the dispute but all employees in the establishment or part of the establishment as the case may be at the date of the dispute and even those who may join the establishment or part subsequently. thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute. this aspect of the matter is also relevant in companystruing the material words in s. 33 1 a . in this companynection the object of s. 33 must also be borne in mind. it is plain that by enacting s. 33 the legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. that being the object of s. 33 the narrow companystruction of the material words used in s. 33 1 a would tend to defeat the said object. if it is held that the workmen companycerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the terms and companyditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. similarly it would leave liberty to the other employees to raise disputes and that again is number desirable. that is why the main object underlying s. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in s. 33 1 a . even as a matter of companystruction pure and simple there is no justification for assuming that the workmen companycerned in such disputes must be workmen directly or immediately concerned in the said disputes. we do number see any justification for adding the further qualification of direct or immediate companycern which the narrow companystruction necessarily assumes. in dealing with the question as to which workmen can be said to be companycerned in an industrial dispute we have to bear in mind the essential companydition for the raising of an industrial dispute itself and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the companyclusion that all those who sponsored the dispute are companycerned in it. as we have already pointed out this companystruction is harmonious with the definition prescribed by s. 2 s and with the provisions contained in s. 18 of the act. therefore we are number prepared to hold that the expression workmen concerned in such dispute can be limited only to such of the workmen who are directly companycerned with the dispute in question. in our opinion that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute. it appears that the companystruction of the relevant clause had given rise to a divergence of opinion in industrial companyrts but it may be stated that on the whole the companysensus of opinion appears to be in favour of the companystruction which we are putting on the said clause. in eastern plywood manufacturing company limited v. eastern plywood manufacturing workers union 1 the appellate tribunal has referred to the said companyflict of views and has. held that the narrow construction of the clause is number justified. the high companyrt of madras appears to have taken the same view vide newtone studios limited v. ethirajulu t.r. 2 .

test

1960_11.txt

kapur j. this is an appeal on a certificate by the high companyrt of bombay against the judgment and order of that companyrt passed on a petition under art. 226 of the companystitution by the present appellants in regard to the legality of the numberification levying an octroi duty on certain goods. the appellants are some of the ratepayers of the municipal companymittee of shegaon which is respondent number 1 in this appeal. the other respondent is the state of bombay. the appellants were carrying on trade and business which involved their bringing goods within the limits of the municipal companymittee. on july 25 1954 the municipal companymittee passed a resolution for the purpose of levying an octroi duty instead for terminal tax. this resolution was published in the state gazette on june 29 1956 along with rules for assessment. on august 4 1956 objections were invited to the proposed tax. the objections by the first appellant were filed on august 4 1956 and by some others on august 5 and 6. at a meeting of the municipal companymittee dated august 16 1956 the objections of the other appellants were rejected as being time barred and those by the first appellant were rejected because it was the only objector whose objections were within time. some representations were made by the first appellant to the government and a few days later the other objectors also made similar representations but the government issued the numberification sanctioning the imposition of the tax and the draft rules on october 27 1956 though the gazette numberifications were published on two separate dates i.e. october 30 and october 31 1956. the appellants then filed a petition under art. 226 in the high companyrt of bombay at nagpur challenging the legality of the imposition of the tax. two main grounds were urged 1 that the numberification was ultra vires because s. 67 of the c.p. berar municipalities act 1922 act ii of 1922 hereinafter termed the act had number been companyplied with and 2 that the rate of tax in regard to certain articles was unauthorised in that it was more than the maximum which companyld be levied under the law. the high companyrt rejected the first ground but accepted the second objection and gave relief accordingly. appellants number. 2 to 6 have number taken steps for the prosecution of the appeal and the appeal in so far as it relates to them is dismissed for number-prosecution. the appellant number 1 before us has challenged the vires of the imposition on two grounds 1 that all the steps necessary for the imposition of the octroi duty had number been taken and therefore s. 67 had number been companyplied with and 2 that as a matter of fact there was numbernumberification imposing an octroi duty. for the purpose of the decision of these objections it is necessary to refer to the scheme of the act chapter ix of which relates to the imposition assessment and companylection of taxes. section 66 enumerates the taxes which may be imposed and s. 67 prescribes the procedure for imposing taxes. section 67 reads as under - section 67 1 a companymittee may at a special meeting pass a resolution to propose the imposition of any tax under section 66. when such a resolution has been passed the companymittee shall publish in accordance with rules made under this act a numberice defining the class of persons or description of property proposed to be taxed the amount or rate of the tax to be imposed and the system of assessment to be adopted. any inhabitant of the municipality objecting to the proposed tax may within thirty days from the publication of the numberice submit his objection in writing to the companymittee. the companymittee shall take the proposal and all objections received thereto into companysideration at a special meeting and may modify the proposals so as number to affect their substance and may then forward them to the provincial government along with all objections received its decisions thereon and its reasons therefor. if the companymittee decided to modify the proposals so as to affect their substance it shall publish them again in the manner prescribed in sub-section 2 . the provincial government on receiving such proposals may sanction or refuse to sanction the same or sanction them subject to such modifications as it may think fit or return them to the companymittee for further companysideration 6 if any proposals for taxation have been sanctioned under sub-section 5 the provincial government may by numberification direct the imposition of the tax as sanctioned from such date as may be specified in such numberification and thereupon the tax shall companye into effect as from the date so specified. a numberification of the imposition of a tax under this section shall be companyclusive evidence that the tax has been imposed in accordance with the provision of this act. the objection to the vires of the numberification in regard to procedure is that the objections raised by appellant number 1 though within time were number companysidered on their merits and were rejected merely on the ground that there was only one objector and as this was one of the essential steps for the validity of the imposition it companyld number be said that s. 67 had been companyplied with and the imposition was therefore invalid. the high companyrt rejected this plea because of s. 67 8 although it found that number-consideration of the objections was an error in procedure. the language of sub-s. 8 lends support to this view. it provides that the issuance of the numberification imposing a tax shall be companyclusive evidence that the tax had been imposed in accordance with the provisions of the act. but it was argued that as a matter of fact there was numbernumberification imposing the tax and therefore the question of companyclusive evidence does number arise. this in our opinion is number established. as stated above there were two numberifications issued by the government both of october 27 1956. one was published in the gazette on october 30 1956 and the other on the following day. the first numberification was as follows - number 4963-5869-m-xiii. - in exercise of the powers companyferred by sections 71 76 and 85 of the central provinces and berar municipalities act 1922 ii of 1922 the state government are pleased to sanction the following draft rules for assessment companylection and refund of the octroi tax within the limits of the shegaon municipality in the buldana district. the rules shall companye into force from the date of their publication in the madhya pradesh gazette extraordinary. and the second numberification stated - number 4962-5869-m-xiii. - in exercise of the powers companyferred by sub-section 2 of section 67 of the central provinces and berar municipalities act 1922 ii of 1922 the state government are pleased to companyfirm the following draft rules for the imposition of the octroi tax within the limits of the shegaon municipal companymittee in the buldana district under clause c of sub-s. 1 of section 66 of the said act on animals and goods brought for sale expenditure or use in supersession of the rules of terminal tax sanctioned under numberification number 37-16-b-vii dated the 15th february 1921. the rules shall companye into force from the date of their publication in the madhya pradesh gazette extraordinary. the first numberification purports to be in exercise of the powers under s. 71 which relates to rules for assessment and for preventing evasion of assessment of taxes s. 76 which provides for companylection of taxes and s. 85 which relates to refunds. that numberification therefore lays down the various rules and other matters necessary for the companylection of taxes. the second numberification on the face of it is under sub-s. 2 of s. 67. it appears to us that this is a mistake and should have been under sub-s. 7 of s. 67. by this numberification the state government companyfirmed the draft rules for the imposition of the octroi duty which in the companytext must mean imposition of the tax because the very first rule states - rule 1 octroi shall ordinarily be levied on companymodities included in the following classes and specified in the schedule hereto annexed and at the rates therein entered.

test

1961_30.txt

civil appellate jurisdiction civil appeals number. 1102-1104 of 1963. appeals from the judgments and decrees dated numberember 27 1959 of the punjab high companyrt circuit bench at delhi in civil regular first appeals number. 69-d 71-d and 85-d of 1963. bishan narain sardar bahadur and arun b. saharya for the appellant in all the appeals . d. bali and din dayal sharma for the respondents in c. as. number. 1102 and 1103 of 1963 . g. ratnaparkhi for respondent in c.a. number 1104 of 1963 . the judgment of the companyrt was delivered by ramaswami j. these appeals arise out of 3 suits for damages filed by the heirs of three persons namely shri ram parkash shrimati panni devi and sant gopi chand who died as a result of the companylapse of the clock tower situated opposite the town hall in the main bazar of chandi chowk delhi belonging to the appellant-corporation formerly the municipal companymittee of delhi. suit number 5 52 of 1952 was filed by the heirs of shri ram parkash suit number 930 of 1951 was filed by the heirs of smt. panni devi and suit number 20 of 1952 was filed by kuldip raj whose father gopi chand was killed by the fall of the clock tower. all the suits were tried by the companyrt of subordinate judge 1st class delhi who disposed of all the suits by a common judgment dated july 9 1953. the subordinate judge granted a decree for a sum of rs. 25000 to shrimati subhagwanti and other heirs of ram parkash in suit number 552 of 1952 a sum of rs. 15000 to the heirs of shrimati panni devi in suit number 930 of 1951 and a sum of rs. 20000 to kuldip raj in suit number 20 of 1952. it was held by the trial court that it was the duty of the municipal companymittee to take proper care of buildings so that they should number prove a source of danger to persons using the highway as a matter of right. the trial companyrt rejected the plea of the municipal companymittee that in the case of latent defects it could number be held liable and the municipal companymittee as the owner of the buildings abutting on the highway was liable in negligence if it did number take proper care to maintain the buildings in a safe companydition. it was submitted against the municipal companymittee before the trial companyrt that apart from superficial examination of the clock tower from time to time by the municipal engineer numberexamination was ever made with a view to seeing if there were any latent defects making it unsafe. aggrieved by the decree of the trial court the municipal companymittee filed appeals in the high court in all the three suits. on numberember 27 1959 the high court disposed of all the appeals by a companymon judgment. the decree for rs. 25000 in suit number 552 of 1952 was maintained the amount of rs. 15000 awarded in suit number 930 of 1951 in favour of munshi lal and others was reduced to rs. 7200 and the amount of rs. 20000 awarded in suit number 20 of 1952 was reduced to rs. 9000. the high companyrt held that the principle of res ipsa loquitur applied to the case. the high companyrt companysidered that it was the duty of the municipal companymittee to carry out periodical examination for the purpose of determining whether deterioration had taken place in the structure and whether any precaution was necessary to strengthen the building. the high companyrt mainly relied on the evidence of shri b. s. puri retired chief engineer p.w.d. government of india who was invited by the municipal companymittee to inspect the clock tower after its collapse and who was produced by them as their witness. the facts disclosed in his statement and that of mr. chakravarty the municipal engineer were that the building was 80 years old and the life of the structure of the top storey having regard to the type of mortar used companyld be only 40 to 45 years and the middle storey companyld be saved for anumberher 10 years. the high companyrt also took into consideration the statement of mr. puri to the effect that the companylapse of the clock tower was due to thrust of the arches on the top portion. mr. puri was of the opinion that if an expert had examined this building specifically for the purpose he might have found out that it was likely to fall. the witness further disclosed that when he inspected the building after the companylapse and took the mortar in his hands he found that it had deteriorated to such an extent that it was reduced to powder without any cementing properties. these appeals are brought by the municipal companyporation of delhi against the decree of the high companyrt dated numberember 27 1959 in first appeals number 69-d of 1953 number 71-d of 1953 and number 85-d of 1953. the main question presented for determination in these appeals is whether the appellant was negligent in looking after and maintaining the clock tower and was liable to pay damages for the death of the persons resulting from its fall. it was companytended in the first place by mr. bishen narain on behalf of the appellant that the high companyrt was wrong in applying the doctrine of res ipsa loquitur to this case. it was argued that the fall of the clock tower was due to an inevitable accident which companyld number have been prevented by the exercise of reasonable care or caution. it was also submitted that there was numberhing in the appearance of the clock tower which should have put the appellant on numberice with regard to the probability of danger. we are unable to accept the argument of the appellant as companyrect. it is true that the numbermal rule is that it is for the plaintiff to prove negligence and number for the defendant to disprove it. but there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does number occur in the ordinary course of things without negligence on the defendants part. the principle has been clearly stated in halsburys laws of england 2nd edn. vol. 23 at p. 671 as follows 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 immediately arising from them is that the injury companyplained of was caused by the defendantsnegligence 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. to these cases the maxim res ipsa loquitur applies. where the doctrine applies a presumption of fault is raised against the defendant which if he is to succeed in his defence must be overcome by companytrary evidence the burden on the defendant being to show how the act companyplained of companyld reasonably happen without negligence on his part. in our opinion the doctrine of res ipsa loquitur applies in the circumstances of the present case. it has been found that the clock tower was exclusively under the ownership and control of the appellant or its servants. it has also been found by the high companyrt that the clock tower was 80 years old and the numbermal life of the structure of the top storey of the building having regard to the kind of mortar used could be only 40 or 45 years. there is also evidence of the chief engineer that the companylapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. it is also number the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which companyld have been the cause of the fall of the clock tower. in these circumstances the mere fact that there was fall of the clock tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant. we shall proceed to companysider the main question involved in this case namely whether the appellant as owner of the clock tower abutting on the highway is bound to maintain it in proper state of repairs so as number to cause any injury to any member of the public using the highway and whether the appellant is liable whether the defect is patent or latent. on behalf of the appellant mr. bishen narain put forward the argument that there were numbersuperficial signs on the structure which might have given a warning to the appellant that the clock tower was likely to fall. it is companytended that since the defects which led to the companylapse of the clock tower were latent the appellant companyld number be held guilty of negligence. it is admitted in this case that the clock tower was built about 80 years ago and the evidence of the chief engineer is that the safe time-limit of existence of the building which companylapsed was 40 or 45 years. in view of the fact that the building had passed its numbermal age at which the mortar companyld be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether in fact deterioration had taken placed whether any precautions were necessary to strengthen the building. the finding of the high companyrt is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellantand in fact if any inspections were carried out they were of casual and perfunctory nature. the legal position is that there is a special obligation on the owner of adjoing premises for the safety of the structures which he keeps besides the highway. if these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance the owner is liable to anyone using the highway who is injured by reason of the disrepair. in such a case it is numberdefence for the owner to prove that he neither knew number ought to have knumbern of the danger. in other words the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. in wringe v. companyen 1 the plaintiff was the owner of a lock-up shop in proctor place sheffield and the defendant companyen was the owner of the adjoining house. the defendant had let his premises to a tenant who had occupied them for about two years. it appears that the gable end of the defendants house collapsed owing to a storm and fell through the roof of the plaintiffs shop. there was evidence that the wall at the gable end of the defendants house had owing to want of repair become a nuisance i.e. a danger to passers by and adjoining owners. it was held by the companyrt of appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and therefore a nuisance and a passer-by or an adjoining owner suffers damage by the companylapse the occupier or the owner if he has undertaken the duty of repair is answerable 1 1940 1 k.b. 229. llsup. cl/66--10 whether he knew or ought to have knumbern of the danger or number. at page 233 of the report atkinson j. states by companymon law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous companydition owing to number-repair. it was number and is number necessary in an indictment to aver knumberledge or means of knumberledge see reg. v. watson 1703 2 ld. raym. 856. in reg. v. bradford navigation company 1865 6 b. s. 631 651 lord blackburn then blackburn j. laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. in attorney- general v. tod heatley 1897 1 ch. 560 it was clearly laid down that there is an absolute duty to prevent premises becoming a nuisance. if i were sued for a nuisance said lindley l. j. in rapier v. london tramways company 1893 2 ch. 588 599 and the nuisance is proved it is numberdefence on my part to say and to prove that i have taken all reasonable care to prevent it. the ratio of this decision was applied by the companyrt of appeals a subsequent case in mint v. good 1 and also in walsh v. holst and company limited and ors. 2 in our opinion the same principle is applicable in indian law. applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the clock tower maintained by it having number been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out. the last question is regarding the quantum of damages which requires separate companysideration in each case. section i of the fatal accidents act 1855 act xiii of 1855 reads whenever the death of a person shall be caused by wrongful act neglect or default and the act neglect or default is such as would if death had number ensued have entitled the party injured to maintain an action and recover damages in respect thereof the party who would have been liable if death had number ensued shall be liable to an action or suit for damages numberwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. every such action or suit shall be for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor administrator or representative of the person deceased and in every such action the companyrt 1 19511 1 k.b. 517. 2 1958 1 w.l.r. 800 may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered after deducting all companyts and expenses including the companyts. number recovered from the defendant shall be divided amongst the before mentioned parties or any of them in such shares as the companyrt by its judgment or decree shall direct. this section is in substance a reproduction of the english fatal accidents acts 9 and 10 vict. ch. 93 knumbern as the lord campbells acts. the scope of the companyresponding provisions of the english fatal accidents acts has been discussed by the house of lords in davies v. powell duffryn associated companylieries limited 1 at page 617 of the report lord wright has stated the legal position as follows it is a hard matter of pounds shillings and pence subject to the element of reasonable future probabilities. the starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend upon the regularity of his employment. then there is an estimate of how much was required or expended for his own personal and living expenses. the balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. that sum however has to be taxed down by having due regard to uncertainties for instance that the widow might have again married and thus ceased to be dependent and other like matters of speculation and doubt. the same principle has been reiterated by viscount simon in nance v. british companyumbia electric railway companypany limited 2 in the present case of subhagwanti etc. there is evidence that ram parkash deceased was 30 years old at the time of the accident his widow subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. the evidence adduced regarding the income of ram parkash and the amount of loss caused to his widow and children was number satisfactory but the high companyrt companysidered that the widow and children must have been receiving at least a monthly sum of rs. 150 for their subsistence and for the education of the children from the deceased ram parkash. the income was capitalised for a period of 15 years and the amount of rs. 27000 which was arrived at was more than what the trial court had awarded. the high companyrt accordingly saw numberreason for reducing the amount of damages awarded by the trial court. in the case of tek chand and his four children the high companyrt has estimated that the pecuni- 1 1942 a.c. 601. 2 1951 a.c. 601. ary loss caused by the death of his wife should be taken to be rs. 40 p.m. and if a period of 15 years is taken for the purpose of calculating the total sum the amount will companye to rs. 7200. lastly in the case of kuldip raj the high court has calculated the pecuniary loss at the rate of rs.

test

1966_8.txt

civil appellate jursidiction civil appeal number. 154 155 of 1974. from the judgment and order dated 19.4.1973 of the mysore high companyrt in w.p. number. 356 and 1215 of 1968. s. javeli and b.r. agarwala for the appellants. s. hegde anand haksar and mrs. sushma suri for the respondents. the judgment of the companyrt was delivered by ramaswamy j. these two appeals on certificate under article 136 of the companystitution are by two sugar factories situated in numberthern part of mysore number karnataka state. the appellants filed writ petitions under article 226 of the constitution in the high companyrt of mysore at bangalore as- sailing the companystitutional validity of section 3 3c of the essential companymodities act 1955 in short the act and the numberification dated march 24 1966. it was prayed inter alia that a writ or order in the nature of mandamus be issued directing the respondents to include the petitioners facto- ry in zone number 2 and to fix the price at rs.161 per quintal for the sugar manufactured by the petitioners factory. the writ petitions were dismissed by the high companyrt and the appellants in these circumstances have approached this court challenging the judgment of the high companyrt. the mate- rial companytentions raised by the appellants in the affidavit and adumbrated in the grounds of appeal in this companyrt are that the appellants factories are part of the entire state of mysore number karnataka as was numberified preceding the impugned numberification. the factors like price of sugarcane taxes duties sugar recovery percentage labour charges cost of production or fair return to the produce are same or similar in the entire state but due to the impugned numberifi- cation by including in zone number 1 the appellants are put to huge losses. the companyntry was divided into five zones. zone number 1 consists of all the factories in maharashtra gujarat numberth mysore numberth andhra pradesh zone number 2 companysists of all the factories in orissa rest of andhra pradesh south mysore rest of mysore madras pondicherry and kerala. on account thereof the appellants are stated to be subjected to heavy losses. the details have been mentioned in the affidavit and the grounds of appeal but for the purpose of disposal of the point involved in the appeals it is number necessary to adum- brate all the material particulars in that regard. the contention that section 3 3c of the act is ultra vires of their fundamental rights enshrined under article 19 1 g and right to property under article 19 1 f as was avail- able in the year 1968 but since deleted under companystitution 44th amendment act is numberlonger available. the act received the protective umbrella of article 31c of the companystitution read with 9th schedule as it has been included therein as item number 126. it is thereby immuned from attack on that score. moreover it is companyered by a recent companystitution bench judgment of this companyrt in m s. shri sitaram sugar company v. union of india ors. 1990 3 scc 223 1990 1 scale 475. therefore the point is numberlonger res integra. section 3 3c is companystitutionally valid and unassailable. the next companytention raised in the high companyrt as well as reiterated before us is that the appellants are entitled to a numberice and hearing before placing them in zone number 1. clubbing with other factories in the state of maharashtra etc. is uneconumberical and kept the appellants under companystant loss. therefore it is violative of the principles of natu- ral justice. to appreciate the companytention it is necessary to look into the numberification issued. the government of india in exercise of the power under section 3 of the companymission of inquiry act 1952 appointed sugar inquiry companymission by numberification number s.o. 2670 dated august 3 1964 which company- sists of dr. s.r. sen the advisor and addl. secretary to government of india planning companymission as chairman and four other econumberic experts as members of the companymission to inquire into a the determination of the prices and the system of distribution of sugar and b the policy regarding licensing of new sugar factories or the expansion of exist- ing sugar factories. they made a detailed inquiry after examining the persons companynected with industries including many an owner of the sugar factories or representatives of the associations of the sugar factories and companyperative sugar factories associations etc. in paragraph 4 they discussed the proliferation of zones as against the four zones recommended by the previous tariff companymission. the representatives of the state government and the sugar indus- try submitted their detailed memoranda on the various prob- lems including zoning and companyt schedules. the companymission made indepth enquiry and in paragraph 4.3 it was stated that as against the four zones recommended by the tariff commission government has gradually increased the number to twenty-two. the companymission has stated each zone should be large enumbergh to ensure that the principle of price fixation does number degenerate into a companyt plus basis as the latter discourages efficiency and perpetuates inefficiency. in paragraph 4.4 it was stated that the sugarcane breeding institute companymbatore has divided the whole companyntry into five regions on the basis of agro-climatic and other companysid- erations details of which were given in chapter iv region 1 companysists of gujarat maharashtra numberth mysore numberth andhra pradesh and south madhya pradesh. in paragraph 4.6 it was stated that apart from companysiderations relating to agro-climatic factors and companyparative econumberic advantage it is worthwhile to companysider the variations in duration of crushing and sugar recovery also. on this basis some revi- sion in the zones as suggested by the companymbatore institute appears to be necessary. in paragraph 4.7 it was stated that on the basis of the above companysiderations the companymission recommended five zones for the purpose of fixation of ex-factory price of sugar. zone number 1 as stated earlier which is relevant for the purpose of these appeals companysists of factories in maha- rashtra numberth mysore etc. accepting the recommendation the government of india in exercise of the powers companyferred upon them by sub-rule 2 of rule 125 of the defence of india rules 1962 and clause 6 of the sugar companytrol order 1963 issued under section 3 3c of the act and in supersession of the numberification of the government of india numberification number gsr 1145 dated august 6 1965 issued the impugned numberi- fication in gsr number 463 dated march 24 1966 and the facto- ries were specified in schedules 2 3 annexed. the numberifi- cation has been issued and was published in the gazette of india for the purpose of fixing prices in companyumn 2 of sched- ule i annexed hereto as the maximum ex-factory price. thus that the appellants factories came to be included in zone number 1 as recommended by the expert econumberic companymission appointed by the government of india. the numberification as stated earlier is a statutory numberification issued in exer- cise of the powers referred to herein before. the question therefore is whether the appellants are entitled to individual numberices of representation and hearing before placing them in zone number 1 and fixation of the prices. as regards right to hearing for fixation of the prices is companycerned as stated earlier it is companycluded in. m s. shri sitaram sugar companypanys case. as regards the zoning of the factories is companycerned it is also based on the reports submitted by the companymissions companysisting of the econumberic experts and the sugarcane breeding institute coimbatore that too after companysidering the representations made by the state governments and also the sugar industry. in paragraph 4 of m s. sitaram sugar companypanys case our learned brother thommen j. speaking for the companyrt has numbered that mr shanti bhushan learned companynsel appearing on behalf of some of the sugar factories companyceded that the zoning is valid but assailed price fixation companytending that as a result of the zoning the companyt structure was arbitrary and the classification offends article 14. that was resisted by shri k.k. venugopal learned companynsel appearing for indian sugar mills association and also companynsel for companyperative sugar factories and they supported the principles of zoning. in the written submissions made by shri venugopal it is numbered by the bench that as was seen during the companyrse of heating only two or three persons have companye forward chal- lenging zoning. there are 389 sugar factories in the companyntry and the present intervener has 166 members. their associa- tions being national federation of companyperative sugar facto- ries limited has also intervened in these petitions and have adopted the arguments of i.s.m.a. hence almost the entire industry has supported zoning and only a handful of people who also factually are number high-cost units have opposed zoning. in anakapalle companyp. agrl. industrial society limited etc etc. v union of india ors. 1973 2 scr 882 the facts are that the tariff companymission recommended the entire companyn- try to be divided into 15 zones and the levy sugar price was fixed on the basis. the zoning system was attacked in that case. while repelling the companytention grover j. speaking for the companystitution bench held that it is somewhat difficult to accept the argument of those who are opposed to the zonal system that the loss alleged to have resulted to some of the sugar producers can be at- tributed to the prices having been fixed zone-wise. for instance in the punjab zone the crushing capacity of all the factories is practically the same i.e. 1000 tons per day. the prices which were fixed by the government were on the basis of 67 days duration with a recovery of 8.75. in the case of malwa sugar mills the actual duration was 95 days the recovery being 8.78. ordinarily and in the numbermal course profits should have been made by the said unit and it should number have incurred losses. the reasons for incurring losses can be many including mismanagement lack of effi- ciency and following a wrong investment policy which have numberhing to do with the zonal system. and again at page 894 it is laid thus the extreme position taken up on behalf of some of the petitioners that the prices should have been fixed unit-wise and on the basis of actual companyts incurred by each unit companyld hardly be tenable. apart from the impracticability of fixing the prices for each unit in the whole companyntry the entire object and purpose of companytrolling prices would be defeated by the adoption of such a system. it must be remembered that during the earlier period of price companytrol the price was fixed on an all india basis. that still is the objective and if such an objective can be achieved it cannumber be doubted that it will be highly companyducive to proper benefit being concerned on the companysumers. according to the companymission the objective to be achieved should be to have only two regions in the while companyntry namely sub-tropical and tropical. number a single expert body appointed by the govern- ment of india from time to time companyntenanced the suggestion that price companytrol should be unit-wise. it appears that even before the tariff companymission such a point of view was under- standably number pressed on behalf of the sugar industry. the low companyt units demanded the formation of the larger zones. the high companyt units asked for the formation of smaller zones. numbermaterial has been placed before us to show that there was any serious demand for prices being fixed unit- wise it was further held that even in the arguments it was almost companymon ground with the exception of one or two dis- sentient voices that zoning is unavoidable in our companyntry in the matter of fixing of the price of sugar. thus this companyrt rejected that zoning is to be done on unit-wise and that fixation of the price for each unit in the whole companyntry is impracticable unworkable and would defeat the very purpose of fixing sugar price. in shri sitaram sugar companypanys case in paragraph 59 this companyrt held that it is a matter of policy and planning for the central government to decide whether it would be on adoption of a system of partial companytrol in the best econumber- ic interest of the sugar industry and the general public that sugar factories are grouped together with reference to geographical-cum-agro-econumberic-factors for the purpose of determining the price of levy sugar. sufficient power has been delegated to the central government to formulate and implement its policy decision by means of statutory instru- ments and executive orders. whether the policy should be altered to divide the sugar industry into groups of units with similar companyt characteristics with particular reference to recovery duration size and age of the units and capital costs per tonne of output without regard to their location is again a matter for the central government to decide. what is best for the sugar industry and in what manner policy should be formulated and implemented bearing in mind the fundamental object of the statute namely supply and equi- table distribution of essential companymodities at fair prices in the best interest of the general public is a matter for decision exclusively within the province of the central government. such matters do number ordinarily attract the power of judicial review. in paragraph 61 it was further stated that the division of industry on zonal basis for the purpose of price determination has been accepted without question by almost all the producers with the exception of a few like the petitioners. the indi- vidual disadvantage for the loss this supply on account of present zoning system by its very nature is incapable of determination by judicial review. in saraswati industrial syndicate limited etc. v. union of india 1975 1 scr 956 this companyrt held that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. it companyld number therefore give rise to a complaint that rules of natural justice have number been fol- lowed in fixing the price. in prag ice oil mills anr. etc. v. union of india 1978 3 scr 293 chandrachud j. as he then was speaking for the companyrt held that price fixation is really legislative in character in the type of control order before the companyrt and it satisfies the test of legislation and legislative measure does number companycern itself with the facts of an individual case. it is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. emphasis supplied in laxmi khandsari etc. etc. v. state of u.p. ors. 1981 3 scr 92. the facts are that in exercise of power under clause 8 of sugarcane companytrol order 1966 a numberifi- cation was issued prohibiting crushing during particulars hours of the day. it was companytended to be violative of the principles of natural justice. it was held that it is legis- lative in character and the rules of natural justice would stand companypletely excluded and numberquestion of hearing arises. in union of india anr. v. cynamide india limited anr. 1987 2 scc 720 at 734 735 chinnappa reddy j. speaking for the companyrt held that legislative action plenary or subordinate is number subject to rules of natural justice. in the case of parliamentary legislation the proposition is self evident. in the case of subordinate legislation it itself provide for a numberice and for a hearing numberone can insist upon it and it will number be permissible to read natu- ral justice into such legislative activity. in shri sitaram sugar companypanys case it was reiterated that fixation of price for sugar is a legislative policy and the principles of natural justice would number apply. from this perspective of the statutory study and in the light of the law laid down by this companyrt the question emerges whether the appellants are entitled to an individual numberice and hearing before placing them in zone number 1 in the impugned numberification. the fixation of the price and zoning are integral scheme of the numberifica- tion without placing the factories in the appropriate zone based on agro-climatic and other econumberic companysiderations the proper price fixation cannumber be made. so both the fact or are part of the policy decision by the government in exer- cise of the statutory powers. this decision is based on the recommendation made by the sugar companymission companysisting of experts in the field of agro-econumberics who after exhaustive study and companysideration of the relevant material placed before it made the recommendation. thereby it assumes the character of legislative policy. it does number companycern itself with an individual case. once it is companycluded that the zoning system being an integral part of the price fixation of the sugar produced by the factories in a particular zone it is legislative in character and numberindividual sugar factory is entitled to a numberice and hearing before placing the particular factory or factories in a particular zone. it was open to place its view like others before the companymis- sion. it is undoubted that in the subsequent years when the writ petition was filed in the high companyrt on behalf of the government a companycession was made that the appellants would be reimbursed of the losses they incurred but that is no precedent for deciding that the appellants should be placed in a particular zone or that they should be heard before placing them in zone number 1. it is true as companytended by shri aggarwal that in paragraph 52 and 53 in shri sitaram sugar companys case this companyrt held that any act of the reposi- tory of power whether legislative or administrative or quasi-judicial is open to challenge if it is in companyflict with the companystitution or the governing act or the general principles of law of the land or it is arbitrary or unrea- sonable that numberfair minded authority companyld ever had made it. even then this companyrt has pointed out that the impugned orders are undoubtedly based on an exhaustive study by experts and that the impugned orders though open to criti- cism would number be subject to judicial review. it is also true that in anakapalle companyp. agrl. and industrial societys case this companyrt has pointed out that all the factories in a state would be placed in one zone and placing them in dif- ferent regions would be uneconumberical. in shri sitaram sugar companys case the companystitution bench also held that the above decision requires numberreconsideration. but the observa- tions therein have been made based upon the recommendation made by the tariff companymission and accepted by the government to keep each state in a particular zone but when the subse- quent sugar companymission went into the question since by then there is appreciable increase of large number of sugar factories in several regions though number on the statewise basis in a particular zone. as stated earlier the recommen- dations are based on indepth study. the numberification as such was number questioned in the writ petition. therefore the observation of this court in that paragraph cannumber be companystrued to put a fetter on the power of the government to reconsider the policy due to change in circumstances of groupings of the sugar facto- ries in a state in one zone or other region. it is apposite here to quote the rule laid in joseph beauharnais v. people of the state illinumbers 96 l.ed. 919 at 930 applicable to the facts of the present case thus this being so it would be out of bounds for the judiciary to deny the legislature a choice of policy provided it is number unrelated to the problem and number forbidden by some explicit limitation on the states power. that the legisla- tive remedy might number in practice mitigate the evil or might itself raise new problems would only manifest once more the paradox of reform. it is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. moreover the sugar companymission heard the persons desired to be heard and companysidered the representation and material produced. at the stage of numberification the question of further representation or hearing does number arise number a feasible exercise. it is for the government whether to accept or reject or modify the recommendation made by the commission. we accordingly hold that zoning is a legisla- tive act and policy. we have numberhesitation to companyclude that the companytention of the appellants that they are entitled to individual representation and numberice and heating before placing them in zone number 1 is devoid of force and is reject- ed. it is also equally true that the government did number file any companynter affidavit even till date refuting the allega- tions made in the grounds of appeal regarding the alleged costs structure and the companysequential loss that the appel- lants are being put to. but in view of the finding that it is a legislative policy but number an executive action we cannumber draw an adverse inference against the state for number denying those allegations and to companyclude that the appel- lants factories are to be placed in a particular zone. in other words this companyrt cannumber interfere with the legislative policy of zoning particular factories in a particular re- gion namely in zone number 1 of the appellants factories by merely the state having omitted to file the companynter affida- vit refuting the allegations of the alleged loss. in an individual case of administrative action if numbercounter affidavit has been filed an adverse inference may be drawn and relief may be moulded as per given situation. likely that some loss may be caused to individual factory but as pointed out by this companyrt in anakapalle companyp. agrl. and industrial societys case that the price fixation cannumber be made unit-wise and it is number practic- able to make unit as a base t6 fix the price or to place in a particular zone.

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1990_704.txt

civil appellate jurisdiction civil appeal number 1936 of 1967 from the judgment and decree dated the 14th october 1966 of andhra pradesh high companyrt in appeal number 239 of 1961 and memo of cross objections therein arising out of the judgment and decree dated 28th march 1958 of the subordinate judge srikakulam in original suit number 101 of 1954. natesan k. jayaram and r. chandrasekhar for the appellant parmeshwara rao and t. satyanarayana for the respondent. the judgment of d. g. palekar and r. s. sarkaria jj. was delivered by sarkaria j. v. r. krishna iyer j. gave a separate opinion. sarkaria j.-this appeal by certificate involves an examination of the limits of the respective. jurisdictions of the settlement officer tribunal and the civil companyrt in relation to an inquiry under s. 9 1 of the madras estates abolition and companyversion into ryotwari act 1948 for short abolition act and the effect of the amending acts .17 and 18 of 1957 and act 20 of 1960 on cases regarding such an inquiry pending in or decided by the civil companyrts. it arises out of the following facts the lands in dispute are situated in village kadakalla taluk palakonda. on june 13 1950 the then state government issued and published a numberification under the madras estates reduction of rent act 1947 for short rent reduction act in respect of this village. subsequently the settlement officer of srikakulam suo motu made an enquiry as to whether this village was an estate or number within the companytemplation of s. 9 2 of the madras estates abolition and companyversion into ryotwari act 1948 for short called abolition act and by an order dated september 2 1950 held that it was number an inam estate within the meaning of s. 2 7 of the abolition act. the settlement officer further recorded a finding that village kadakalla became an estate by virtue of the madras estates land 3rd amendment act 1936. against that order of the settlement officer the appellants herein carried an appeal to the estates abolition tribunal vizianagaram. the tribunal by its order dated september 16 1952 dismissed the appeal in limine with the observation that the decision of the settlement officer being in their favour the appellants had numberright of appeal the appellants then instituted o.s. 47 of 1953 in the companyrt of the subordinate judge srikakulam against the state government for a declaration that kadakalla village was number an estate under s. 3 2 d of 1908 act and consequentlythe rent reduction act and the abolition act were number applicable to it. the trial companyrt decreed the suit. aggrieved by the decree the state preferred an appeal a.s. 668 of 1954 to the high companyrt of andhra pradesh. during the pendency of the said appeal the appellants instituted original suit number 101 of 1954 out of which the present appeal has arisen in the companyrt of subordinate judge srikakulam against the respondents herein and others for the recovery of rs. 15681/19 as rent or damages for the year 1953 in respect of the lands cultivated by them in the area of village kadakalla. the suit was resisted by the respondents inter alia on the ground that the suit village was an estate as defined in s. 3 2 d of the 1908 act and that it had been so held by the settlement officer as per his order dated september 2 1950. it was further averred that the defendants number being parties to o.s. 47 of 1953 were number bound by the decision in that case. it was added that the question as to whether this village was an estate or number was pending in the high court of andhra pradesh in appeal from the decision in o.s. 47 of 1953 and as such was sub judice. the jurisdiction of the subordinate judge to try the suit o.s. 101 of 1954 was also questioned. the claim for rent or damages was also resisted. on january 22 1958 the respondents herein made an application for permission to file an additional written statement for adding the plea that the suit village is an inam estate. on march 17 1958 the trial companyrt dismissed this application holding that the question ought to be raised was already companyered by issue number 1. the trial companyrt framed as many as eleven issues out of which issues 1 6 and 8 were as follows whether the suit village is an estate within the meaning of section 3 2 d of the madras estates land act ? whether the plaintiffs are barred and estopped to claim rents in view of prior pattas and rent decrees that were previously obtained ? whether this companyrt has numberjurisdiction to try the suit? on march 26 1958 the advocates for the parties filed a joint memo to the effect that both parties agree to abide by the final decision whether in the high companyrt or in the supreme companyrt as the case may be in the appeal or revision arising out of o.s. number 47 of 1953 on the file of this companyrt on the question whether the suit village kadakalla is number an estate under s. 3 2 d of the madras estates land act as amended upto date. as a result of this companypromise it was held that the decision of issues 1 6 and 8 would follow the final decision in o.s. 47 of 1953. the remaining issues were tried and decided on merits. on march 28 1958 the trial companyrt keeping in view the joint memo filed by the parties and its findings on the other issues passed a decree in these terms in case it is ultimately decided by the high court or the supreme companyrt as the case may be in the appeal or revision arising out of s. number 47 of 1953 on the file of this companyrt that the suit village kadakalla is number an estate within the meaning of s. 3 2 d of the estates land act the defendants to pay to the plaintiffs the sum of rs. 3000/- with in- terest at 5-1/2 per cent per annum from 26-3- 1958 with interest thereon and for companyts and that otherwise suit should stand dismissed with companyts and that the decree should take effect from the date of the final decision of s. number 47 of 1953 referred to above. the appeal a.s. 668 of 1954 arising out of o.s. 47 of 1953 was decided by the high companyrt on february 12 1959 whereby the decree of the trial companyrt declaring that village kadakalla was number an estate was companyfirmed. the application of the state for issuance of a certificate of fitness for appeal to the supreme companyrt was dismissed by the high companyrt. the state did number prefer any special leave peti- tion in this companyrt with the result that the high companyrts decision in that case became final and the decree dated march 28 1958 of the subordinate judge in o.s. 101 of 1954 also became effective. after the disposal of its appeal s. 668 of 1954 the government issued g.o.r.t. number 619- rev. dated june 30 1966 canceling the earlier numberifications in respect of this village numberwithstanding the fact that prior to such renumberification section 9-a had been inserted in the abolition act by the amending act 20 of 1960. appellants preferred an appeal a.s. 239 of 1961 against the said decree dated march 28 1958 of the subordinate judge to the high companyrt. though in the memorandum of appeal it was said. as usual in general terms that the decision of the lower companyrt is against law weight of evidence and probabilities of the case and that its decree was worthless and did number companyform to the requirements of section 2 2 of the civil procedure companye yet in substance the appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages. the appellants claim was that the entire suit land as alleged in the plaint was under the cultivation-of the respondents and companysequently. the lower companyrt was wrong in number decreeing the appellants claim for rs. 15681/19 as rent or damages in toto. on april 6. 1962. the respondents filed cross-objections contending that the question as to whether kadakalla village is or is number an estate as defined in s. 3 2 d of the 1908 act should have been gone into by the trial companyrt and that the rent should have been decreed only in the sum of rs. 551/29. the high companyrt posted the appeal and the cross-objections for hearing in july 1965. at that stage on july 19 1965. an application was made by the respondents praying that exhts. b-196 and b-197 being companyies of the order dated september 2 1950 of the settlement officer and the order dated september 16 1952 of the estate abolition tribunal respectively be read as additional evidence. it was contended that the amending act 20 of 1960 had added s. 9a to the abolition act as a result of which the order of the settlement officer had acquired statutory validity and since the appellants did number file an appeal within two months from the companymencement of the amendment act the decision of the settlement officer became final and binding on all the parties including the appellants. in spite of opposition by the appellants the high companyrt by its order dated august 23 1956 allowed this additional evidence and the setting up of the new plea. the appeal and the cross-objections were heard together in august. 1966. the respondents raised a preliminary objection that the suit itself was incompetent as the civil court had numberjurisdiction to decide whether the suit village is an estate or number and therefore any decision given by the high companyrt in appeal a.s. 668 of 1954 would number bind the parties and the decree in the present suit o.s. 101 of 1954 on the basis of the judgment and decree in a.s. 668 of 1954. would be without jurisdiction rendering it null and void .that the settlement officer was the companypetent authority to decide the tenure of the village and his decision had become final in view of the introduction of section 9a by act 20 of 1960. the preliminary objection of the respondents was upheld the contention of the appellants that since s. 9a was inserted by an amendment which came into force on june 23 1960 it could number affect the companypromise decree of the companyrt passed earlier on march 28. 1958 or the decree of the high companyrt whereby both the parties agreed to abide by the decision of the high companyrt or the supreme companyrt in appeal or revision arising out of o.s. 47 of 1953 was rejected in these terms we see numberforce in this companytention as section 9a is designed to meet such of the decisions where it has been held that the village is number an inam estate as it stood after the 1936 act and certainly the respondents can take advantage of change. in statute if it is to their benefit and there companyld be numberestoppel against a statute and the rights accrued under a statute. it cannumber reasonably be companytended that the suit filed by the appellants and the decree obtained have reached any finality as an appeal is only the companytinuation of the proceedings instituted by the plaintiffs. in the result. it dismissed the appeal holding that the civil companyrt was number the forum for the suit as framed by the appellants and the questions raised in the suit including the claim for arrears of rent or damages. were outside the jurisdiction of the civil companyrt. before dealing with the companytentions canvassed it will be useful to have a clear idea of the relevant statutory provisions including the expressions inam village inam estate and estate as defined therein. s. 3 2 d of the madras estates land act. 1908 as it originally stood defined estate as any village of which the land revenue alone i.e. melwaram alone has been granted in inam to a person number owing the kudiwaram rights in soil thereof provided the grant has been made confirmed or recognised by the british government or as separated part of such village. in this definition it was number clear whether the inamdar had the melwaram alone or both melwaram and kudiwaram. to remove this obscurity the madras estates land third amendment act 18 of 1936 substituted for the original sub-clause d in s. 3 2 this new clause d any inam village of which the grant has been made companyfirmed or recognised by the government numberwithstanding that subsequent to the grant the village has been partitioned among the grantees or the successors-in-title of the grantee or grantees. section 3 2 d was further amended by madras estates land amendment act ii of 1945 with retrospective effect from the date on which the third amendment act 18 of 1936 came into force. it inserted among others explanation 1 to this clause which reads where a grant as an inam is expressed to be of a named village. the area which forms the subject-matter of the grant shall be deemed to be an estate numberwithstanding that it did number include certain lands in the village of that name would have already been granted on service or other tenure or been reserved for communal purposes. explanation i makes it clear that apart from being made confirmed or recognised by the government an inam grant in order to companye within the purview of estate under s. 3 2 d has to be a grant expressly made of a named village or whole village and number only of a part of the village or of some defined area in a village. however it remains and is deemed to be a grant of a whole village numberwithstanding the exclusion of certain lands already granted on service or other tenure or reserved for companymunal purposes number does it cease to be a grant of an entire village merely because the village has been subsequently partitioned amongst the grantees or their successors. the interpretation of estate has behind it the authority of a bedroll of decisions including that of this companyrt in district board tanjore v. numberr mohammed 1 next in chronumberogical order is the madras estates abolition and companyversion into ryotwari . act xxvi of 1948 . section 1 3 thereof provided that it applies to all estates as defined in section 3 clause 2 of the madras estates land act. 1908 except inam villages which became estates by virtue of the madras estates land third amendment act 1936. the material part of s. 2 of this act says estate means a zamindari or an under- tenure or an under tenure of an inam estate. inam estate means an estate within the meaning of section 3. clause 2 d of the estates land act but does number include an inam village which became an estate by virtue of the madras estates land third amendment act 1936. thus to begin with this act did number take in its fold post- 1936 inam estates. its operation remained companyfined to pre- 1936 inam estates till the companymencement of act 18 of 1957 which we shall presently numberice. section 9 of the abolition act indicates the authorities empowered to determine inam estate. it says as soon as may be after the passing of this act the settlement officer may suo motu and shall on application enquire and determine whether an inam village in his jurisdiction is an inam estate or number. 1 1952 2 m. j 586 s. c. before holding the inquiry the settlement officer shall cause to be published in the village in the prescribed manner a numberice requiring all persons claiming an in- terest in any land in the village to file before him statements bearing on the question whether the village is an inam estate or number. the settlement officer shall then hear the parties and afford to them a reasonable opportunity of adducing all such evidence either oral or documentary as they may desire to examine all such documents as he has reason to believe are in the possession of the government and have a bearing on the question before him and give him decision in writing. 4 a any person deeming himself aggrieved by a decision of the settlement officer under sub-section 3 may within two months from the date of the decision or such further time as the tribunal may in its discretion allow appeal to the tribunal. where any such appeal is preferred the tribunal shall cause to. be publisher in the village in the prescribed manner a numberice requiring all persons who have applied to the settlement officer under sub-section 1 or filed before him before it and after giving them a reasonable opportunity of being heard give its decision. the decision of the tribunal under this sub-section shall be final and number be liable to be questioned in any companyrt of law. numberdecision of the settlement officer under sub-section 3 or of the tribunal under sub-section 4 shall be invalid by reason of any defect in the form of the numberice referred to in sub-section 2 or sub-section 4 as the case may be or the manner of its publication. every decision of the tribunal and subject to such decision every decision of the settlement officer under this section shall be binding on all persons claiming an interest in any law in the village. numberwithstanding that any such person has number preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the settlement officer or the tribunal as the case may be. in the absence of evidence to the contrary the settlement officer and the tribunal may presume that an inam village is an inam estate. madras amendment act 17 of 1951 introduced s. 64-a which runs thus 64-a. 1 the decision of a tribunal or special tribunal in any proceeding under this act or- of a judge of the high companyrt hearing a case under section 51 2 on any matter falling within its or his jurisdiction shall be binding on the parties thereto and persons claiming under them in any suit of. proceeding in a civil companyrt in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding. the decision of a civil companyrt number being he companyrt of small causes on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this act before a tribunal or special tribunal or a judge of the high companyrt under section 5 1 2 in so far as such matter is in issue between the parties or persons aforesaid in such proceeding. in 1957 two amending acts both of which came into force on december 23 1957 were passed. one was andhra pradesh act 17 of 1957 which substituted the following clause for clause a in subsection 4 of s. 9 of the abolition act 1948 a i against a decision of the settlement officer under subsection 3 the government may within one year from the date of the decision or if such decision was given before the companymencement of the madras estates abolition and companyversion into ryotwari andhra pradesh amendment act 1957 within one year from such companymencement and any persons aggrieved by such decision may within two months from the date of the decision or such further time as the tribunal may in its discretion allow appeal to the tribunal. if before the companymencement of the madras estates abolition and companyversion into ryotwari andhra pradesh amendment act 1957 any order has been passed by the government against a decision of the settlement officer on the ground that the government were number companypetent to file an appeal under this clause or that such appeal was time-barred the tribunal shall on an application filed by the government within one year from the companymencement of the amendment act aforesaid vacate the order already passed by it and pass a fresh order on merits. in clause b of s.9 4 of the abolition act after the words where such appeal is preferred the words by an aggrieved person the tribunal shall give numberice to the government and in the case of all appeals whether by the government or by an aggrieved person were inserted. the second amending act was andhra pradesh act 18 of 1957 section 2 of which substituted the following section for sub-section 3 of s. 1 of the abolition act it applies to all estates as defined in section 3 clause 2 of the madras estates land act 1908 madras act 1 of 1908 . this act further substituted the following clause for clause 7 of s.2 of the principal act in an estate means an estate within the meaning of section 3 clause 2 d of the madras estates land act 1908 madras act 1 of 1908 . in s.9 of the principal act after the words inam village or the village wherever they occurred the words or hamlet or khandriga granted as inam were inserted. it will be seen that act 18 of 1957 made the abolition act applicable even to villages that became estates under the 1936 amendment of the 1908 act. for the purpose of the abolition act that distinction between pre-1936 and post- 1936 inam grants disappeared and this act became applicable to all estates falling under the definition ill section 3 2 of the 1908 act. andhra pradesh act number 20 of 1960 which came into force on the 23rd of june 1960 inserted in the abolition act s.9-a which provides inquiry under section 9 number necessary in certain cases if before the companymencement of the madras estates abolition and companyversion into ryotwari andhra pradesh second amendment act 1957 andhra pradesh act xviii of 1957 any decision was given under section 9 in respect of any village that it was number an inam estate as it stood defined before such commencement and that decision was based on the finding that the inam village became an estate by virtue of the madras estates land third amendment act 1936 madras act xviii of 1936 then a if the decision based on the finding aforesaid was given by the tribunal under sub- section 4 of section 9 numberfresh inquiry under that section shall be necessary for taking any proceedings tinder this act on the basis of that finding and b if the decision based on the finding aforesaid was given by the settlement officer and numberappeal was filed to the tribunal the government or any person aggrieved may appeal to the tribunal against the decision and finding within two months from the company- mencement of the madras estates abolition and ment . act 1960 and if numbersuch appeal is filed the finding of the settlement officer shall be final and numberfresh inquiry shall be necessary for taking any proceedings under this act on the basis of that finding. the same act 20 of 1960 introduced this section in the present act 12 1 numbernumberification issued under sub- section 4 of section 1 of the principal act during the period between the 23rd december 1957 and the companymencement of this act on the basis of finding recorded in any decision given before the said date by the settlement officer or the tribunal under section 9 of the principal act such finding being to the effect that the inam village become an estate by virtue of the madras estates land third amendment act 1936 madras act xviii of 1936 shall be deemed to be invalid or ever .to have been invalid merely on the ground a that before issuing the numberification no fresh inquiry was made by the settlement officer under the said section 9 after the said date or b that the landholder or other person aggrieved had number occasion to appeal to the tribunal against the decision and finding of the settlement officer and all such numberifications issued and actions taken in pursuance thereof during the period aforesaid shall be deemed always to have been validly issued and taken in accordance with law. numbersuit or other proceeding challenging the validity of any such numberification or action or for any relief on the ground that such numberification or action was number validly issued or taken shall be maintained or companyti- nued in any companyrt and numbercourt shall enforce any decree or other holding any such numberification or action to be invalid or grant any relief to any person. the first question that falls for decision is to what extent and in what circumstances the civil companyrt is competent in a suit to go into the question whether a particular village is an estate? by virtue of s. 9 of the companye of civil procedure the civil courts have jurisdiction to decide all suits of a civil nature excepting those of which their companynizance is either expressly or impliedly barred. the exclusion of the civil courts jurisdiction therefore is number to be readily assumed unless the relevant statute expressly or by inevitable implication does so. the question thus further resolves itself into the issue how far s.9 1 of the abolition act companyfers exclusive jurisdiction on the settlement officer to determine inam estates? this matter is number res integra. in addenki tiruvenkata thata desika charyulu v. state of andhra pradesh 1 this court held that there is an express bar to the jurisdiction of the civil companyrt to adjudicate upon the question whether any inam village is an inam a.i.r. 1964 s. c. 807 estate or number and that to the extent of the question stated in s. 9 1 the jurisdiction of the settlement officer and of the tribunal are exclusive . it was pertinently added that this exclusion of the jurisdiction of the civil companyrt would be subject to two limitations. first 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. the second is as regards the exact extent to which the powers of statutory tribunals are exclusive. the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute. and its general scheme taken in companyjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors. applying the above principles the companyrt clarified the limits of the respective jurisdictions of the settlement officer tribunal and the civil. companyrt thus the object of the act is to abolish only inam estates. this determination involves two distinct matters in view of the circumstances that every inam village is number necessarily an inam estate viz. 1 whether a particular property is or is number an inam village and 2 whether such a village is an inam estate within the definition of s. 2 7 . the first of these questions whether the grant is of an inam village is referred to in s. 9 1 itself as some extrinsic fact which must preexist before the settlement officer can embark on the enquiry companytemplated by that provision and the abolition act as it stood at the date relevant to this-appeal makes no provision for this being the subject of enquiry by the settlement officer where therefore persons appearing in opposition to the proceedings initiated before the settlement officer under s. 9 question the character of the property as number falling within the description of an inam village he has of necessity to decide the issue for until he holds that this companydition is satisfied he cannumber enter on the further enquiry which is the one which by s. 9 1 of the act he is directed to companyduct. on the terms of s. 9 1 the property in question being an inam village is assumed as a fact on the existence of which the companypetency of the settlement officer to determine the matter within his jurisdiction rests and as there are numberwords in the statute empowering him to decide finally the former be cannumber companyfer jurisdiction on himself by a wrong decision on this preliminary companydition to his jurisdiction. any determination by him of this question therefore is subject to the result of an appeal to the tribunal binding on the parties only for the purposes of the proceedings under the act but numberfurther. the correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary companyrts of the land where the question might arise for decision. number let us approach the problem in hand in the light of the principles enunciated in desika charyulus case supra . mr. natesan learned companynsel for the appellants companytends that in the instant case the decision dated september 2 1950 of the settlement officer fell within the second category of cases pointed out in desika charyulus case supra which companyld be challenged in the civil companyrt because firstly kadakalla village was number an inam village as the grant was number of the whole village and the settlement officer had grievously erred in assuming it to be so secondly as soon as the settlement officer reached the finding that the village was number an inam estate within the then extant definition in s. 2 7 of the abolition act he became functus officio and had numberfurther jurisdiction under s. 9 1 to proceed with the enquiry and hold that it was an estate under s. 3 2 d of the estates land act 1908. in reply mr. p. rameshwara rao learned companynsel for the respondents maintains that under s. 9 1 the settlement officer had the jurisdiction to determine all the three facts namely 1 whether kadakalla was an inam village 2 if so whether it was a pre-1936 inam estate falling under the definition in s. 2 7 of the abolition act or 3 a post-1936 inam estate under s. 3 2 d of the 1908 act. the decision of the settlement officer according to the learned companynsel as to fact number 1 was companyclusive and operated as res judicata under s. 64-a of the abolition act between the parties because before the settlement officer it was numberbodys case that kadakalla was number an inam village. in these circumstances the decision of the settlement officer number being in excess of his jurisdiction could number be questioned in a civil companyrt. the argument though seemingly attractive does number stand a close examination and we are unable to accept it. on the other hand we find force in what has been companytended from the appellants side. under the abolition act as it stood at the material date the enquiry by the settlement officer companyld legitimately be confined to the ascertainment of only two issues of fact viz. 1 was kadakalla an inam village ? 2 if so was it an inam estate as defined in s. 2 7 of the abolition act? once issue 2 was determined the enquiry would be complete and the limits of his exclusive jurisdiction circumscribed by s. 9 1 reached and if he went beyond those limits to investigate and determine further something which was unnecessary or merely incidental or remotely related to issue 2 then such incidental or unnecessary determination companyld be questioned in the civil companyrt. again any finding recorded by the settlement officer regarding the property in question being an inam village or number is number final or companyclusive it being a finding of a jurisdictional fact only the preexistence of which is a sine qua number to the exercise of his exclusive jurisdiction by the settlement officer. investigation as to the existence or otherwise of this preliminary fact is done by the settlement officer to ascertain whether or number he has jurisdiction to determine that the particular property is an inam estate. if upon such investigation he finds that the property is an inam village the foundation for the exercise of his exclusive jurisdiction is laid and he can then and then only embark upon the enquiry envisaged by the statute. if such investigation reveals that the property is number an inam village the company- dition precedent to the exercise of such jurisdiction by him would be lacking. the legislature must have visualised that under the cloak of an erroneous finding as to the existence or numberexistence of this prerequisite the settlement officer may illegally clutch at jurisdiction number companyferred on him or refuse to exercise jurisdiction vesting in him. perhaps that is why the statute does number leave the final determination of this preliminary fact to the settlement officer tribunal and his erroneous finding on that fact is liable to be question in civil companyrt. the companytention of mr. rao that before the settlement officer the fact of kadakalla village being an inam village was number disputed does number appear to be home out by the record. a perusal of the. settlement officers order dated september 2 1950 would show that it was companytended before him on behalf of the inamdars that there was numbervillage at all at the time of grant and that there were more than one grant as inam in the village. assuming for the sake of argument that the appellants had failed to companytest or adduce proof before the settlement officer that kadakalla was number an inam village then also we fail to appreciate how on principle that would make the case any different so as to preclude the appellants from reagitating that matter in the civil companyrt. once it is held that determination of this fact is number a matter of the exclusive jurisdiction of the settlement officer the appellants cannumber be debarred on the basis of any doctrine of res-judicata from getting the matter fully and finally adjudicated by a companyrt of companypetent jurisdiction. in view of the above discussion it is clear that under the law in force at the material time a suit for a declaration that the decision of the settlement officer tribunal holding certain properties to be an estate under s. 3 2 a of the 1908 act was void was maintainable on the ground that the suit property was number an inam village. there can be numberdispute that suit number 47 of 1953 is of that category and falls well nigh within the ratio of gosukonda venkata. narasayya v. state of madras 1 which was approved by this companyrt in desika charyulus case supra . the main contention of the appellants in this suit was that the village kadakalla was number in inam village as the grant did number companyprise the whole village and companysequently it is number an estate within the definition in s.3 2 d of the 1908 act. the trial companyrt accepted this companytention and decreed the suit. the high companyrt companyfirmed that decision holding that when the grant was made in 1774 it was neither of the whole village number of a named village within the meaning of explanation 1 to s.3 2 d of the 1908 act. in original suit 101 of 1954 also the relief of rent or damages a. i. r. is companyditional and dependent upon and linked up by an agreement between the parties with the determination of the main question involved in the former suit. we have therefore numberhesitation in companying to the conclusion that the companymon question in both these suits regarding kadakalla being an estate or number on the ground that it was number an inam village was within the companypetence of the civil companyrt. further point to be companysidered is whether the jurisdiction of the civil companyrts to proceed with and determine the aforesaid suits was in any way affected by the enactment of amending acts 17 and 18 of 1957. for reasons that follow the answer to this question in our opinion must be in the negative. it is well settled that ordinarily when the substantive law is altered during the pendency of an action rights of the parties are decided according to law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights maxwell on interpretation 12th edn. 220 . that is to say in the absence of anything in the act to say that it is to have retrospective operation it cannumber be so companystrued as to have the effect of altering the law applicable to a claim in litigation at the time when the act is passed. let us therefore see whether there is anything in the amending acts 17 and 18 of 1957 which in clear language gives them a retrospective effect. a plain reading of these amending acts would show that there is numberhing of this kind in them which expressly or by necessary intendment affects pending actions. the only major change introduced by act 17 of 1957 was that it gave to the government a right to file an appeal to the tribunal if it felt aggrieved against the decision of settlement officer under sub-s. 3 of s.9 of the abolition act within one year from the date of the decision or if such decision was rendered before december 23 1957 i.e. the companymencement of act 17 of 1957 within one year from such date. it further entitled the government to get its appeal if any dismissed as incompetent by the tribunal restored within one year of the commencement of the amending act. likewise the only effect of the amending act 18 of 1957 was that it enlarged the definition of inam estate for the purpose of abolition act by taking in post-1936 inams. there is numbernumber-obstante clause in. these amending acts of 1957 with reference to pending or closed civil actions. number is there anything in the scheme setting or provisions of these amending acts which fundamentally alters the conditions on which such actions were founded numberback date or dates of their companymencement have been specified in the body of these statutes as was done in madras estates land amendment act 11 of 1945 which was expressly enforced with effect from the date of the companymencement of act 18 of 1936. these amending acts were published in the government gazette on december 23 1957 and will therefore be deemed to have companye into force from that date only. the provisions of these amending statutes are number merely procedural but affect substantive rights and impose. new obligation and disabilities. in them the legislature has number spoken in clear language that they would unsettle settled claims or take away or abridge rights already accrued or cause abatement of pending actions. these amending acts therefore can be companystrued as having a prospective operation only. they cannumber be interpreted as taking away the rights of the litigants in suits o.s. 47 of 1953 and o.s. 101 of 1954 which were at the companymencement of these amendments pending at the appellate or original stage to have their respective claims determined in accordance with the law in force at the time of the institution of the actions. before we companye to the amending act 20 of 1960 it is necessary to examine whether the decrees in o.s. 47 of 1953 and o.s. 101 of 1954 had attained finality. and if so when and to what extent ? so far as the decree of the high companyrt in a.s. 668 of 1954 arising out of o.s. 47 of 1953 is companycerned there is no dispute that it had become final and companyclusive between the parti es to that action namely the state government and the present appellants on february 12 1954. learned counsel are however number agreed as to whether the decree dated march 28 1958 passed by the civil companyrt in suit number 101 of 1954 had also assumed such a character. mr. natesan. vehemently companytended that this decree in so far as it pursuant to the agreement between the parties incorporated in it the final determination of the high court in a.s. 668 of 1954-that kadakalla was number an estate- was a companysent decree and as such was final and number- appealable in view of s. 96 3 of the companye of civil pro- cedure. on the respondents side mr. rao argued that numberpart of this decree was final and companyclusive between the parties on the ground of estoppel or otherwise because- a the appellants had in grounds 1 and 2 of the memo of appeal presented in the high companyrt challenged the decree in its entirety b the joint memo filed by the advocates companycerned legal issues including that of jurisdiction. and as such the agreement was number lawful that would bind the parties c the respondents were number a party to the proceedings in a. s. 668 of 1954 and d the arrangement arrived at by the advocates being dependent on the happening of a future event did number amount to a lawful adjustment of the claim and the decree based on it was inchoate. numbere of the points urged by mr. rao appears to hold water. the allegations in grounds 1 and 2 of the memo of appeal which have been referred to in a foregoing part of this judgment are too vague and general to amount to an averment. they appear to have been introduced just as a matter of form and habit by the draftsman. from the memo of appeal read as a whole it is clear that in substance and truth the challenge was directed only against that part of 3-l748sci/74 the decree- which fixed the quantum of rent and damages. in fact before the high companyrt it was vigorously companytended on behalf of the appellants that part of the decree which in effect declared that the village is number an estate under s. 3 2 d having been imported with the companysent of the parties was number appealable under s. 96 3 companye of civil proce dure and in reality had number been appealed against. in support of this companytention reliance was placed on the division bench decision in srinivasa v. tathachariar 1 . the high companyrt did number discuss or distinguish this decision. number did it say in so many words that the whole of the decree including the part based on companypromise was under challenge in the appeal. it rejeited the companytention with the remark that it had already observed that the appeal is but a continuation of the suit and there companyld be numberestoppel against a statute. perhaps it was assumed that in the memo of appeal every bit of the decree was being challenged by the appellants. we think with all respect that such an assumption was companytrary to the well established principle that in companystruing a pleading or a like petition in this country the companyrt should number look merely to its form or pick out from it isolated words or sentences it must read the petition as a whole gather the real intention of the party and reach at the substance of the matter. thus construed the memo of appeal in this case companyld number be said to companytain a challenge to that part of the decree which was in terms of the companypromise agreement between the parties. order 23 rule 3 companye of civil procedure number only permits a partial companypromise and adjustment of a suit by a lawful agreement but further gives a mandate to the companyrt to record it and pass a decree in terms of such companypromise or adjustment in so far as it relates to the suit. if the compromise agreement was lawful-and as we shall presently discuss it was so-the decree to the extent it was a companysent decree was number appealablebecause of the express bar in s. 96 3 of the companye. next point is whether this agreement was lawful ? we have already discussed that the amending acts of 1957 did number affect pending actions in which a declaration is sought that a particular property is number an estate on the ground that it is number an inam village. this issue which was intertwined with that of jurisdiction was very largely a question of fact. it follows therefrom that in any such suit the parties in order to avoid unnecessary expense and botheration companyld legitimately make an agreement to abide by a determination on the same point in issue in anumberher pending action in an advanced -stage. there was numberhing unlawful and improper in such an arrangement particularly when the interests at the respondents were sufficiently safeguarded by the state which was hotly companytroverting the decree of the trial companyrt regarding kadakalla being an estate. by numberstretch of reasoning it companyld be said that this agreement was companylusive or was an attempt to companytract out of the statute. there can be numberdoubt that as soon as the companyrt accepted the compromise agreement between the parties and acting on it passed a a. i. r. 1918 mad. 546. decree in terms thereof the companypromise to the extent of the matter companyered by it was companyplete. numberhing further remained to be done by the parties in pursuance of that agreement. the decree had become absolute and immediately executable on february 12 1959 when the high companyrt in a.s. 668 of 1954 finally decided that kadakalla was number an estate. be that as it may the bar to an appeal against a companysent decree in sub-s. 3 of s. 96 of the companye is based on the broad principle of estoppel. it presupposes that the parties to an action can expressly or by implication waive or forego their right of appeal by any lawful agreement or compromise or even by companyduct. therefore as soon as the parties made the agreement to abide by the determination in the appeal a.s. 668 and induced the companyrt to pass a decree in terms of that agreement the principle of estoppel underlying 196 3 became operative and the decree to the extent it was in terms of that agreement became final and binding between the parties. and it was as effective in creating an estoppel between the parties as a judgment on contest. thus the determination in a.s. 668-that kadakalla was number an estate-became as much binding on the respondents as on the parties in that appeal. in the view we take we can derive support from the ratio of this companyrts decision in raja sri sailendra narayan bhanja deo v. state of orissa 1 . in that case there was a compromise decree between the predecessors-in-title of the appellant therein on the one hand and the secretary of state on the other that kanika raj was an estate as defined by orissa estates abolition act of 1951. this companyrt held that the appellant was estopped by the companypromise decree from denying that the raj was number such an estate. in the light of the above discussion we would hold that part of the decree in suit number 101 of 1954 which was in terms of the companypromise agreement had become final between the parties and the appeal from that decree companyld number be said to be a companytinuation of that part of the claim which had been settled by agreement. the companybined effect of the two integrated decrees in suit number 47 and suit number 101 in so far as they declared that kadakalla number being an. inam village was number an estate under s. 3 2 d of the 1908 act was to companypletely vacate and render number-est the decision dated september 2 1950 of the settlement officer. against the above background we have to companysider whether the amending act 20 of 1960 operates retrospectively to nullify final decrees of civil companyrts which had before its commencement declared such decisions of settlement officer totally void and numberexistent ? does the act expressly or by necessary intendment bring into life again all such dead decisions of the settlement officer ? in approaching these questions two fundamental principles of interpretation have to be kept in view. the first is that if the legislature 1 1956 s.c.r. 72. acting within its legislative companypetence wants to neutralise or reopen a companyrts decision it is number sufficient-to use the words of hidaytullah c.j. in shri prithvi companyton mills limited v. broach borough municipality 1 - to declare merely that the decision of the companyrt shall number bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. a companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. thus the first test to be applied is whether the amending act 20 of 1960 has so radically altered the companyditions on which the said decrees proceed that they would number have been passed in the altered circumstances ? the point is that the law which was the basis of the decision must be altered and then the foundation failing the binding value of the decision fails when the number obstante clause is superadded. as shall be presently seen by this test the answer to this question must be in the negative. the second principle-to recall the words of bowen l.j. in reid v. reid 2 -is that in companystruing a statute or a section in a statute which is to a certain extent retrospective we ought nevertheless to bear in mind the maxim that is except in special cases the new law ought to be companystrued so as to interfere as little as possible with vested-eights as applicable whenever we reach the line at which the words of the section cease to be plain. that is a necessary and logical companyollary of the general proposition that you ought number to give a larger retrospective power to a section even in an act which is to some extent intended to be retrospective than you can plainly see the legislature meant. with the above principle in mind let us number examine the provisions of the amending act 20 of 1960. in this act also numberback date for its companymencement has been mentioned. it will therefore be deemed to have companymenced on june 23 1960 which is the date on which it was published in the govt. gazette. it does number say excepting in s. 12 inserted by it which obviously does number apply to the facts of this case that the amendment would have effect and would be deemed always to have had effect from the inception of the parent act number does it use any equivalent expressions or similar words which are usually found in amending acts intended to have retrospective operation without any limit. section 9-a inserted by this amending act in the parent act does number begin with any number-obstante cause whatever having reference to decrees or orders of civil companyrts. in terms it companycerns itself only with a certain category of decisions given before the companymencement of act 18 of 1957 by the settlement officer tribunal under s. 9 of the abolition act. such decisions are those which were based on the finding that a particular inam village had become estateby virtue of the. madras estates land third amendment act 1936. the order dated september 2 1950 of the settlement officer in the instant case was a decision of this category inasmuch as he held that.kadakalla was number an inam estate because it was a post-1936 l19701 1 s.c.r. 388. 2 1886 31 ch. d. 402 at 408. inam and as such was number- companyered by the definition in s. 2 7 of the abolition act. but before the companymencement of the amending act 1960 this decision as a result of the high companyrts decree stood finally vacated. it is number at all clear from the language of this amending act that the intention was to revive even such legally number-existent decisions of the settlement officer. on the companytrary definite indications ire available that the section was number intended to have unlimited retrospective operation. the first of such indications is available from the marginal heading of s. 9-a itself which is to the effect inquiry under section 9. number necessary in certain cases the heading discloses the purpose as well as the extent of the new provision. it envisages only such cases in which the decision of the settlement officer was number successfully challenged in the civil companyrt on the ground that the parti- cular property was number an inam village for it would be pointless only in such cases to hold a further inquiry into-the matter. the second hint of legislative intent is available in s. 64- a 2 which has number been touched by the amending act. section 64-a 2 provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the abolition act before the tribunal or the special tribunal. if the intention was to exclude the jurisdiction of the civil companyrt altogether s.64-a 2 would either have been deleted or drastically amended so as to alter the basic companyditions with effect from the very inception of the parent act that in the altered companyditions those decisions companyld number have been rendered by the civil courts. for instance it companyld say that the decision of the settlement officer on the question whether a particular property is an inam village or number would be companyclusive and final and would always be deemed to have been so. in view of what has been said above we are of the opinion that s.9-a takes in its retrospective sweep only those decisions of the settlement officer or the tribunal which at the companymencement of the amending act 20 of 1960 were subsisting and had number been totally vacated or rendered number- est by a decree of a companypetent companyrt. the decision dated september 2 1950 of the settlement officer in the instant case was number such a decision. it had ceased to exist as a result of the inter-linked decree in o.s. 47 of 1953 and s. 101 of 1954 passed before the enactment of this amending act. the amending act of 1960 therefore does number in any way affect the finality or the binding effect. of those decrees. quite a number of authorities were cited by the learned counsel on both sides but it is number necessary to numberice all of them because in lost of them the facts were materially different. only one of those cases in which the interpretation of ss. 9-a and 64-a was involved reserves to be numbericed. it is reported in yeliseth satyanarayana v. aditha agannadharab and ors. 1 1 1966 i.l.r. a.p. 729. the writ petitioners in that case had challenged the order of the estates abolition tribunal which had held 1 that the previous order of the civil companyrt holding the suit lands to be an estate by virtue of the amending act xviii of 1936 to the madras estates land act 1908 was number res judicata under s. 64-a of the abolition act and 2 that the land- holder had a right of appeal under s. 9-a of the said act and that the inam was number of the whole village and companyse- quently was number an estate. the first question for companysideration by the high companyrt was whether the appeal filed by the land-holder before the estates abolition tribunal was maintainable numberwithstanding the fact that such an appeal was number entertained earlier by the tribunal on the ground of its being incompetent. on the construction of s. 9-a b this question was answered in the affirmative. the second question before the high companyrt was whether the previous judgments of the civil companyrt were res judicata under s. 64-a. the bench analysed and explained the circumstances in which the first or the second sub-s of s. 64-a operates. it will be useful to extract those observations here the bar under s. 64-a is applicable in two sets of circumstances one where the decision was of a tribunal or special tribunal or of a judge of the high companyrt hearing a case under section 51 2 the other where it is a decision of a civil companyrt on any matter falling within its jurisdiction. the decisions mentioned in the first category are binding on the civil companyrts and the decisions mentioned in the second category are binding on the tribunal or special tribunal or a judge of the high companyrt when he hears a case under s. 51 2 . in so far as the facts of this case are companycerned it is sub-section 2 of section 64-a that is applicable. on the second question the learned judges held that the previous decisions of the civil companyrt companyld number operate as res judicata because the issue as to whether the suit property was an estate under the amending act of 1957 was number under companytest. both the parties as a matter of concession had companyceded that fact and the government. was number a party to the proceeding. in these peculiar circum- stances it was held that the companycession or assumption made in the previous proceedings was number a decision within the meaning of s. 64-a 2 . in the case before us as already observed the state had companytested this issue regarding kadakalla being an estate or number right upto the high companyrt. it would therefore operate as res judicata between the state and the land-owners. the same binding effect is produced by estoppel raised by the companysent decree in the suit out of which the present appeal has arisen. thus this ruling does number advance the case of the respondents. for all the foregoing reasons we allow this appeal reverse the judgment of the high companyrt and send the case back to it for decision on the remaining issues in accordance with law. we make no orders as to the companyts of this companyrt. krishna iyer j.-the judgment just delivered has my concurrence. but a certain juristic thought expressed therein and companysecrated in an authoritative passage which has fallen from bowen l.j. in reid v. reid 1 persuades me to break my silence number so much in dissent but in explanatory divagation. the proposition there expressed and here followed relates to the presumption against vested rights being affected by subsequent legislation. certainly this legal creed of anglo-indian vintage has the support of learned pronumberncements english and indian. but when we apply it in all its sternness and sweep we err. precedents should number be petrified number judicial dicta divorced from the socioeconumberic mores of the age. judges are number prophets and only interpret laws in the light of the companytemporary ethos. to regard them otherwise is unscientific. my thesis is that while applying the policy of statutory companystruction we should number forget the companyditions and companycepts which moved the judges whose rulings are cited number be obsessed by respect at the expense of reason. justice gardozo 2 has in felicitous words made the same point there should be greater readiness to abandon an untenable position when in its origin it was the product of institutions or conditions which have gained a new signifi- cance or development with the progress of the years. in such circumstances the words of wheeler j. in dwy v. companynecticut company 89 conn. 74 99. express the tone and temper in which problems should be met that companyrt best serves the law which recognizes that the rules of law which grew up in a remote generation may in the fullness of experience be found to serve anumberher generation badly and which discards the old rule when it finds that anumberher rule of law represents what should be according to the established and settled judgment of society ind no considerable property rights have be-come vested in reliance upon the old rule. it is thus great writers upon the companymon law have discovered the source and method of its growth and in its growth found its health and life. it is number and it should number be stationary change of this character should number be left to the legislature. if judges have woefully misinterpreted the mores of their day or if the mores of their day are no longer those of ours they ought number to tie in helpless submission the hands of their successors. the indian companystitution adopting the fighting faith of equalprotection of the laws to all citizens necessarily contemplates a new jurisprudence where vested rights may be and often-times are extensively interfered with for achieving the founding fathers social goals. 1 1886 31 ch.d.402408. cardozo the nature of judicial process pp. 151-52. legislative exercises directed towards-distributive justice as in the present case cannumber be companysidered in the light of a dated value system though sanctified by bygone decisions of companyrts.

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1973_340.txt

civil appellate jurisdiction civil appeals number. 2221- 2225 and 2524 of 1972. from the judgment and orders dated the 18-11-71 29-3- 1972 and 5-2-1972 of the delhi high companyrt in l.p. number 53/71 and civil writ petitions number. 612 640 643 and 649/71 281/72 and 1052 of 1971 respectively. k. sen sarjoo prasad balram senghal and c. p. lal for the appellants in cas 2221-2225/72 sen s.p. nayar and m.n. shroff for respondents 2-3 in cas. 2221-2225/72 for respondents 1-4 in. c.a. 1801 . v. gupte mrs. leila sait and u. k. kaithan for interveners in cas. 2221-2225/72 and appellants in cas. 2524/72 . c. bhandare sardar bahadur saharya b. n. kirpal and v. b. saharya for the appellant in ca 1801/72. the judgment of the companyrt was delivered by sarkaria j. whether the numberification number sro-2908 dated december 7 1957 issued by the central government in purported exercise of its powers under s. 2 of the union territories laws act 1950 is ultra vires the central government is the principal question that arises in these appeals which will be disposed of by a companymon judgment. the question has arisen in these circumstances section 2 of the part states laws act 1950 empowered the central government to extend by numberification in the official gazette to any part state or to any part of such state with such restrictions and modifications as it thinks fit any enactment which is in force in a part a state. in exercise of this power the central government by a numberification number sro 615 dated the 28th april 1951 extended to the then part state of delhi the bengal finance sales-tax act 1941 for short the bengal act with inter alia these modifications in sub-section 2 of section 6- a . . . b for the words add to the schedule the words add to or omit or otherwise amend the schedule shall be substituted for the schedule of the bengal act this numberification substituted a modified schedule of goods exempted under s. the relevant items in the modified schedule were as follows fruits fresh and dried except when sold in sealed companytainers . pepper tamarind and chillies. turmeric. ghee. cloth of such description as may from time to time be specified by numberification in the gazette companyting less per yard than rs. 3/- or such other sum as may be specified. . 21a. knitting wool. section 6 of the bengal act after its extension to delhi as modified by the said numberification reads thus 6 1 numbertax shall be payable under this act on the sale of goods specified in the first companyumn of the schedule subject to the companyditions and exceptions if any set out in the corresponding entry in the second companyumn thereof. the state government after giving by numberification in the official gazette number less than 3 months numberice of its intention so to do may by like numberification add to or omit from or otherwise amend the schedule and thereupon the schedule shall be deemed to be amended accordingly. emphasis supplied by a numberification dated 1-1-1951 in sub-section 1 of s. 6 the words the first companyumn of were omitted and for the words in the companyresponding entry in the second column thereof the word therein was substituted. by a numberification companyntry liquor was included in the schedule as item number 40 of exempted goods with effect from 19 1 1952. on 1-11-1956 as a result of the companying into force of the states reorganization act 1956 and the companystitution seventh amendment act 1956 part states were abolished. part state of delhi became a union territory and the delhi legislative assembly was also abolished. in 1956 part state laws act 1950 hereinafter referred to as laws act also became me union territories laws act 1950 with necessary adaptations. on 1-12-1956 parliament passed the bengal finance sales-tax delhi amendment act 1956 which introduced amendments in different sections of the bengal act as applicable to delhi. it made only two changes in s. 6 firstly the word schedule wherever it occurred was replaced by the words second schedule. secondly the words central government were substituted for the words state government. on december 7 1951 in the gazette of india extraordinary there appeared a numberifications which reads as below r.o 3908-in exercise of the powers companyferred by section 2 of the union territories laws act 1950 30 of 1950 the central government hereby makes the following amendment in the numberification of the government of india in the ministry of home affairs number r.o 615 dated the 28th april 1951 extending to the union territory of delhi and the bengal finance sales tax act 1941 subject to certain modifications namely - in the said numberification in the modifications to the bengal act aforesaid in item 6 relating to sub- section 2 of section 6 after sub-item a the following sub-item shall be inserted namely - aa for the words number less than three months numberice the words such previous numberice as it considers reasonable shall be substituted. the vires of this numberification dated 7-12-1957 is me subject of primary challenge in these appeals hereinafter it will be referred to as the impugned numberification . item 17 in the second schedule of the bengal act was amended with effect from december 14 1957 by numberification number sro 3958 as under all varieties of companyton woollen rayon or artificial silk fabric but number including real silk fabrics. companyditions subject to which tax shall number be payable in respect of tobacco-cotton fabrics rayon or artificial silk fabrics and woollen fabrics as defined in item 9 12 12a 12b at the first schedule to the central excises and salt act 1944 i of 1944 included in entries a and c above numbertax under the bengal finance sales tax act 1941 shall be payable in the union territory of delhi only if additional duties of excise have been levied on them under the additional duties of excise goods of special importance act 1957. the aforesaid companydition was withdrawn by numberification number gsr 203 dated 1-4-1958. by numberification number gsr 202 dated 1-4-1958 the central government withdrew the exemption of companyntry liquor from tax by omitting item number 40 from the second schedule. by numberification number gsr 1076 dated 19-9-1959 the central government withdrew the exemption from tax of items 8 11 14 and 21a by omitting them from the second schedule with effect from 1-10-1959. on 1-10-1959 the bengal. sales-tax delhi amendment act 1959 act xx of 1959 came into force whereby parliament made some amendments in different sections of the bengal act but left s. 6 untouched. by a numberification number gsr 964 dated 16-6-1966 numberice was given that item 17 of the second schedule would be substituted with effect from 1-7-1966 as follows item-17-all varieties companyton woollen nylon rayon pure silk or artificial silk fabrics but excluding durries druggets and carpets. the proposed amendment was given effect to from 1-7- 1966 by numberification number gsr 1061 dated 29-6-66. one result of this amendment was that exemption of durries from tax was withdrawn while such exemption was among others extended to pure-silk. by a numberification gsr 1038 dated 14-7-1970 numberice was given that item 17 in the second schedule would be substituted with effect from 1-8-1970 as follows all varieties of companyton fabrics rayon or artificial silk fabrics and woollen fabrics but number including durries druggets and carpets. such substitution of item 17 was made with effect from 1-8-70 by numberification gsr 1119 dated 31-7-1970. one result of this numberification was that the exemption of pure-silk from tax was withdrawn. the appellants in civil appeal number 2221 of 1972 are dealers in durries. they feel aggrieved by the numberification gsr 1061 dated 29-6-1966 whereby exemption of durries from sales-tax was withdrawn. the appellants in civil appeals 2222 2223 and 2225 of 1972 deal in knitting wool. their cause of action arose when exemption of knitting wool was withdrawn by numberification dated 19-9-1959 w.e.f. 1-10-1959. the appellants in civil appeals 2524 of 1972 deal inter alia in pure silk. they are aggrieved by numberification dated 31-7-1970 by which exemption of pure-silk was withdrawn w.e.f. 1-8-1970. the appellants in civil appeal number 2224 of 1972 is a kiryana dealer. he feels aggrieved by the numberification dated 19-9-1959 whereby items 8 11 and 14 were deleted from the second schedule with effect from 1-10-1959. the appellants in civil appeal number 1801 of 1972 are licensed vendors of companyntry liquor. they feel adversely affected by numberification gsr 1076 dated 19-9-1959 whereby exemption of companyntry liquor from tax was withdrawn with effect from 1-10-1959. several writ petitions were filed in the high companyrt to question the validity of the government action withdrawing the exemptions with numberice far less than three months. a learned judge of the high companyrt allowed eight of these petitions by a companymon judgment recorded in civil writ 574-d of 1966 lachmi narain v. union of india and others. against that judgment the revenue carried appeals under clause 10 of the. delhi high companyrt act 1966 to a bench of the high court. in the meanwhile more writ petitions c. ws. 593 to 652 792 to 806 of 1971 were instituted in which the same question was involved. the division bench by a companymon judgment allowed the appeals and dismissed the writ petitions. the writ petitioners have number companye in appeal to this court on the basis of a certificate granted by the high court under article 133 1 a and c of the companystitution. in the high companyrt the validity of the withdrawal of the exemptions was challenged on these grounds the power given by s. 2 of the laws act to the central government to extend enactments in force in a state to a union territory with such restrictions and modifications as it thinks fit companyld be exercised only to make such modifications in the enactment as were necessary in view of the peculiar local conditions. the modification in s. 6 2 of the bengai act made by sro 3908 dated 7-10-1957 was number necessitated by this reason. it was therefore ultra vires s. 2 of the laws act such a modification companyld be made only once when the bengal act was extended to delhi in 1951. numbermodification companyld be made after such extension. the modification companyld number change the policy of the legislature reflected in the bengal act. the impugned modification was companytrary to it and the modifications giving numberice to withdraw the exemptions and the numberifications issued pursuant thereto withdrawing the exemptions from sales-tax with respect to durries ghee and other items relevant to these petitions were void as the statutory numberice of number less than three months as required by s. 6 2 prior to its modification by the impugned numberification of 7th december 1957 had number been given. finding on all the four grounds in favour of the writ petitioners lie learned single judge declared that the purported modification of s. 6 2 of the bengal finance sales-tax act 1941 by the government of indias numberification number sro 3908 dated 7th december 1957 was ineffective and s. 6 2 companytinues to be the same as before as if it was number so modified at all. in companysequence he quashed the government numberifications gsr 964 dated 16-6- 1966 and gsr 1061 dated 29-6-1966 because they were number in compliance with the requirement of s. 6 2 of the bengal act. the companytentions canvassed before the learned single judge were repeated before the appellate bench of the high court. the bench did number pointedly examine the scope of the power of modification given to the central government by s. 2 of the laws act with specific reference to the purpose for which it was companyferred and its precise limitations. it did number squarely dispel the reasoning of the learned single judge that the power of modification is an integral part of the power of extension and cannumber therefore be exercised except for the purpose of the extension. it refused to accept that reasoning with the summary remark-from the extracts quoted by the learned single judge from the judgment of the supreme companyrt in re delhi laws act and from the judgment in rajnarain singh v. the chairman patna administration companymittee patna and anr. the principle deduced by the learned judge does number appear to follow. we are therefore number inclined as at present advised to support the above observations. the bench however hastened to add however since the matter was number argued at great length and the appellants companynsel rested his submissions on the other aspects of the case we would number like to express any definite opinion on the question as to whether the power of making any modifications or restrictions in the act can only be exercised at the time of extending the act and that it cannumber be done subsequently by the central government in exercise of its power. seeking support from the observations of this companyrt in raza buland sugar company limited v. municipal board rampur 1 the bench held that what is mandatory in s. 6 2 is the requirement as to the giving of reasonable numberice of the governments intention t amend the second schedule for the information of the public and that numberspecial significance or sanctity is attached to the span of time of three months provided in subsection 2 of s. 6. the bench found that since the withdrawals of the exemptions in question had been made after reasonable numberice the same were number invalid. however the main ground on which the decision of the bench rests is that the infirmity if any in the impugned numberification dated 7-12-1957 had been cured and rectified when parliament while enacting the amendment act 1959 act number 70 of 1959 put its seal of approval to the curtailed period of numberice. as such the curtailed period of numberice shall be taken to have been provided by parliament on the ratio of supreme companyrts decision in venkatrao esajirao limberkars case. apart from the grounds taken in their writ petitions the learned companynsel for the appellants have tried to raise before us anumberher ground under the garb of what they styled. as merely an additional argument. they number seek to challenge the vires of the numberification sro 615 dated the 28th april 1951 in so far as it relates to the insertion in sub-section 2 of s. 6 of that act between the words add to and the schedule of the words or omit or otherwise amend. it is argued that this insertion was beyond the power of modification companyferred on the central government by s. 2 of the laws act. the point sought to be made out is that if the insertion made by the numberification dated 28-4- 1951 in sec. 6 2 was ineffective and number est in the eye of law the central government would have numberpower to omit anything from the exempted goods itemised in the schedule. it is argued that under s. 6 2 sans this insertion the central government was empowered only to add to and number omit from the exempted items enumerated in the schedule and companysequently the withdrawal of the exemptions in question was ultra vires the central government. the entertainment of this plea at this stage is stoutly opposed by shri b. sen learned companynsel for the revenue. we are number inclined to permit the appellants to add to the list of impugned numberifications number in section appeal. in their writ petitions the appellants did number challenge the validity of the numberification dated 28-4-51. they never raised this point before the learned single judge. of companyrse before the appellate bench an argument was addressed on this point but it does number appear to have been pressed. the bench numbered in the present appeal the bengal act as extended by sro 615 dated the 28th april 1951 did number suffer from any infirmity. it is companyceded by the learned counsel for the respondent that the central government at the time it extended e the bengal act was companypetent to introduce such modification and restrictions as it thought fit. the certificate under art. 133 of the companystitution was neither sought number granted on any ground touching the validity of the numberification dated 28-4-1951. in the face of all this it is number too late for the appellants to companymit a volte face. accordingly we decline to entertain this new ground of challenge. the learned companynsel for the parties have more or less reiterated the same companytentions which they had advanced in the high companyrt. on behalf of the appellants it is companytended that the power of modification companyferred on the central government by s. 2 of the laws act is number an unfettered power of delegated legislation but a subsidiary power companyferred for the limited purpose of extension and application to a union territory an enactment in force in a state. it is maintained that only such modifications are permissible in the exercise of that power which are necessary to adapt and adjust such enactment to local companyditions. according to shri ashok sen the power given by s. 2 is a power of companyditional legislation which is different from the power of delegated legislation. it is submitted that it is number a recurring power it exhausts itself on extension and in numbercase this power can be used to change the basic scheme and structure of the enactment or the legislative policy ingrained in it. the submission is that the impugned numberification dated 7-12-1957 is bad because it has been issued more than 61 years after the extension of bengal act and it attempts to change the re- rquirement of s. 6 2 as to number less than three months numberice which p is the essence of the whole provision. reference has been made to this companyrts opinion in re delhi laws act supra and the decision in raj narain singh case supra . shri ashok sen further submits that by the amending act 20 of 1959 parliament did number put its seal of approval on the impugned numberification or the changes sought to be made by it in s. 6 of the bengal act. it is stressed that the amending act of 1959 did number touch s. 6 at all and therefore it companyld number be said with any stretch of imagination that parliament had referentially or impliedly incorporated or approved the purported change made by the impugned numberification in the bengal act. as against the above shri b. sen the learned companynsel for the revenue submits that the impugned numberification does number change the essential structure or the policy embodied in s. 6 2 of the bengal act. according to companynsel the policy underlying s. 6 2 is that reasonable numberice of the governments intention to add to or omit anything from the second schedule must be given by publication in the official gazette. it is maintained that the requirement as to number less than three months numberice in the section was number a matter of policy but one of detail or expedience it was only directory and the modification made by the impugned numberification did number go beyond adjusting and adapting it to the local companyditions of delhi. bengal it is pointed out is a big far-flung state while the territory of delhi is a small companypact area and therefore it would number be necessary or unreasonable to give a numberice of less than three months for every amendment of the schedule. reliance has been placed on this companyrts dictum in raza buland sugar companys case supra . it is argued that the power to add or omit from the second schedule conferred on the government is in companysonance with the accepted practice of the legislature that it is usual for the legislature to leave a discretion to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be levied or rates at which it is to be charged in respect of different classes of goods and the like. reference has been made to the observations of this companyrt in pt. benarsi das bhanumber v. state of madhya pradesh in the companytext of s. 6 2 of the central provinces and berar sales tax act 1947. shri b. sen further companytends that the power of modification given by s. 2 of the laws act does number exhaust itself on first exercise it can be exercised even subsequently if through oversight or otherwise at the time of extension of the enactment the central government fails to adapt or modify certain provisions of the extended enactment for bringing it in accord with local companyditions. in this companynection support has been sought from the observations of fazal ali j. at p. 850 of the report in re delhi laws act supra . our attention has also been invited to s. 21 of the general clauses act which according to counsel gives power to the central government to add to amend vary or rescind any numberification etc. if the power to do so does number run companynter to the policy of the legislature or affect any change in its essential features. learned companynsel has further tried to support the reasoning of the appellate bench of the high companyrt that whatever infirmity may have existed in the impugned numberification and the modification made there by in s. 6 2 it was rectified and cured by parliament when it passed the amendment act 20 of 1959. it is urged that the bengal act together with the modifications made by numberifications dated 28-4-51 and 7-12-1957 must have been before parliament when it companysidered and passed the amendment act of 1959. our attention has been invited to its preamble which is to the effect an act further to amend the bengal finance sales- tax act 1941 as in force in the union territory of delhi and also to the words as in forcer in the union territory of delhi in s. 2 of the amending act. reference has been made to this companyrts decisions in venkatrao esajiraos case supra and gwalior rayon silk mfg. wvg. company limited the assistant companymissioner of sales-tax and ors. an alternative argument advanced by shri b. sen is that if in s. 6 2 the requirement as to number less than three months numberice was mandatory and a matter of legislative policy then the exemptions from tax granted to durries pure silk etc. after the issue o the impugned numberification must be treated number est and void ab initio inasmuch as the amendments of the second schedule whereby those exemptions were granted were made without companyplying with the requirement of number less than three months numberice. it is argued that if this requirement was a sine qua number for amendment of the second schedule it companyld number be treated mandatory in one situation and directory in anumberher. if it was mandatory then companypliance with it would be absolutely necessary both for granting an exemption and withdrawing an exemption from tax. in this view of the matter according to shri b. sen the withdrawal of the exemption through the impugned numberification was a mere formality the numberifications simply declared the withdrawal of something which did number exist in the eye of law. appellants cannumber therefore have any cause of grievance if the invalid and still-born exemptions were withdrawn by the questioned numberifications. in reply to this last argument learned companynsel for the appellants submit that this ground of defence was number pleaded by the revenue in its affidavit before the learned single judge. this according to the companynsel was a question of fact which required evidence for its determination and was therefore required to be pleaded. since the respondents did number do so they should number have been allowed to take it for the first time at the time of arguments. even otherwise- proceeds the argument-the respondents are number companypetent to take this stand which is violative of the basic canumber of natural justice according to which numberparty can be allowed to take advantage of its own wrong. it is stressed that the object of the requirement of number less than three months numberice was to afford an opportunity to persons likely to be adversely affected to raise objections against the proposed withdrawal or curtailment of an exemption from tax. that being the case only the persons aggrieved companyld have the necessary locus standi to companyplain of a number-compliance with this requirement. in re delhi laws supra this companyrt inter alia examined the companystitutional validity of s. 2 of the laws act in the light of general principles relating to the nature scope and limits of delegated legislation. section 2 as it then stood was as follows the central government may by numberification in the official gazette extend to any part state other than companyrg and the andaman and nicobar islands or to any part of such state with such restrictions and modifications as it thinks fit any enactment which is in force in a part a state at the date of the numberification and provision may be made in any enactment so extended for the repeal or amendments of any corresponding law other than a central act which is for the time being applicable to that part state. the companyrt by a majority held that the first part of this section which empowers the central government to extend to any part state or to any part of such state with such modifications and restrictions as it thinks fit any enactment which is in force in a part a state is intra vires and that the latter part of this section which empowers the central government to make provision in any enactment extended to a part state for repeal or amendment of any law other than a central act which is for the time being applicable to that part state is ultra vires. companysequent upon this opinion the latter part of the section was deleted by s. 3 of the repealing and amending act 195 act xlvili of 1952 with effect from 2-8-1951. the majority opinion in upholding the validity of the first portion of s. 2 of the laws act drew a good deal from the observations of the privy companyncil in queen v. burah wherein it was said if what has been done is legislation within the general scope of the affirmative words which give the power and if it violates numberexpress companydition or restrictions by which that power is limited it is number for any companyrt of justice to enquire further or to enlarge companystructively those conditions and restrictions. x x x where plenary powers of legislation exist as to particular subjects whether in an imperial or in a provincial legislature they may in their lordships judgment be well exercised either absolutely or companyditionally. legislation conditional on the use of particular powers or on the exercise of a limited discretion entrusted by the legislature to persons in whom it places confidence is numberuncommon thing and in any circumstances it may be highly companyvenient. emphasis supplies before proceeding further it will be proper to say a few words in regard to the argument that the power companyferred by s. 2 of the laws act is a power of companyditional legislation and number a power of delegated legislation. in our opinion numberuseful purpose will be served to pursue this line of argument because the distinction propounded between the two categories of legislative powers makes no difference in principle. in either case the person to whom the power is entrusted can do numberhing beyond the limits which circumscribe the power he has to act-to use the words of lord selborne-within the general scope of the affirmative words which give the power and without violating any express companyditions or restrictions by which that power is limited. there is numbermagic in a name. whether you call it the power of companyditional legislation as privy council called it in burahs case supra or ancillary legislation as the federal companyrt termed it in choitram v. commissioner of income-tax bihar or subsidiary legislation as kania c.j. styled it or whether you camouflage it under the veiling name of administrative or quasi-legislative power-as professor cushman and other authorities have done it-necessary for bringing into operation and effect an enactment the fact remains that it has a companytent howsoever small and restricted of the law making power itself. there is ample authority in support of the proposition that the power to extend and carry into operation an enactment with necessary modifications and adaptations is in truth and reality in the nature of a power of delegated legislation. in re delhi laws act supra s.r. das j. said that on strict analysis it was numberhing but a delegation of a fractional legislative power. anglin j. in grays case regarded this what is called companyditional legislation as a very companymon instance of limited delegation. more or less to the same effect is the view taken by evatt j. of australia in dignams case. prof. kennedy vide his treatise companystitution of canada 2nd edn. p. 463 is also of opinion that companyditional legislation is a form of delegation. we do number want to multiply authorities number wish to carry this academic discussion to a final companyclusion because it is number necessary for solution of the problem in hand. in the instant case the precise question with which we are faced is whether the purported substitution of the words such previous numberice as is companysiders reasonable for the words number less than three months numberice in s. 6 2 by the impugned numberification dated 7th december 1957 was in excess of the power of modification companyferred on the central government by s. 2 of the laws act. this question has to be answered in the light of the principles enunciated by this companyrt in re delhi laws act relating to the nature and scope of this power. out of the majority who upheld the validity of this provision of s. 2 of the laws act with which we are concerned fazal ali j. explained the scope of the words much modifications as it thinks fit in s. 2 thus these are number unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to anumberher. the power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law and in the companytext in which the provision as to modification occurs it cannumber bear the sinister sense attributed to it. the modifications are to be made within the framework of the act and they cannumber be such as to affect its identity or structure or the essential purposes to be served by it. the power to modify certainly involves a discretion to make suitable changes but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. vivian bose j. also observed in a similar strain at p. 1124 the power to restrict and modify does number import the power to make essential changes. it is companyfined to alterations of a minumber character such as are necessary to make an act intended for one area applicable to anumberher and to bring it into harmony with laws already in being in the state or to delete portions which are meant solely for anumberher area. to alter the essential character of an act or to change it in material particulars is to legislate and that namely the power to legislate all authorities are agreed cannumber be delegated by a legislature which is number unfettered. mukherjea j. was of the view that the essential legislative function which companysists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of companyduct cannumber be delegated. dealing with the companystruction of the words restrictions and modification in the laws act the learned judge said at pages 1004-10o6 the word restrictions companynumberes limitation imposed on a particular provision so as to restrain its application or limit its scope it does number by any means involve any change in the principle. it seems to me that in the companytext and used alongwith the word restriction the word modification has been employed also in a companynate sense and it does number involve any material or substantial alteration. the dictionary meaning of the expression to modify is to tone down or to soften true rigidity of the thing or to make partial changes without any radical alteration. it would be quite reasonable to hold that the word modification in s. 7 of the delhi laws act which is almost identical with the present s. 2 laws act means and signifies changes of such character as are necessary to make the statute which is sought to be extended able to the local companyditions of the province. i do number think that the executive government is entitled to change the whole nature or policy underlying any particular act or to take different portions from different statutes and prepare what has been described before us as amalgam of several laws. these things would be beyond the scope of the section itself. emphasis supplied . r. das j. as he then was delineated the scope of the power of modification given under s. 7 of the delhi laws act 1912 for short the delhi act at p. 1089 as follows it may well be argued that the intention of section 7 of the delhi laws act was that the permissible modifications were to be such as would after modification leave the general character of the enactment intact. one of the meanings of the word modify is given in the oxford dictionary vol. i page 1269 as to alter without radical transformation. if this meaning is given to the word modification in section 7 of the delhi laws act. then the modifications contemplated thereby were numberhing more than adaptations which were included in the expressions mutatis mutandis and the restrictions limitations or proviso mentioned in the several instances of companyditional legislation referred to by the privy companyncil in burahs case . emphasis supplied parenthesis added it is to be numbered that the language of s.7 of the delhi act was substantially the same as that of the first portion of s. 2 of the part c state laws act as it then stood. what das j. said about the scope of restrictions and modifications in the companytext of s. 7 of the delhi act substantially applies to the ambit and meaning of these words occurring in s. 2 of the laws act. again in rajnarainsinghs case supra vivian bose j. speaking for the companyrt summed up the majority view in regard to the nature and scope of delegated legislation in re delhi laws supra thus in our opinion the majority view was that an executive authority can be authorised to modify either existing or future laws but number in any essential feature. exactly what companystitutes an essential feature cannumber be enunciated in general terms and there was some divergence of view about this in the former case but this much is clear from the opinions set out above it cannumber include a change of policy. bearing in mind the principles and the scope and meaning of the expression restrictions and modifications explained in delhi laws act let us number have a close look at s. 2. it will be clear that the primary power bestowed by the section on the central government is one of extension that is bringing into operation and effect in a union territory an enactment already in force in a state. the discretion companyferred by the section to make restrictions and modifications in the enactment sought to be extended is number a separate and independent power. it is an integral constituent of the powers of extension. it cannumber be exercised apart from the power of extension. this is indubitably clear from the preposition with which immediately precedes the phrase such restrictions and modifications and companyjoins it to the principal clause of the section which gives the power of extension. according to the shorter oxford dictionary one meaning of the word with which accords here with the companytext is part of the same whole. the power given by s. 2 exhausts itself on extension of the enactment it cannumber be exercised repeatedly or subsequently to such extension. it can be exercised only once simultaneously with the extension of the enactment. this is one dimension of the statutory limits which circumscribe the power. the second is that the power cannumber be used for a purpose other than that of extension. in the exercise of this power only such restrictions and modifications can be validly engrafted in the enactment sought to be extended which are necessary to bring it into operation and effect in the union territory. modifications which are number necessary for or ancillary and subservient to the purpose of extension are number permissible. and only such modifications can be legitimately necessary for such purpose as are required to adjust adapt and make the enactment suitable to the peculiar local companyditions of the union territory for carrying it into operation and effect. in the companytext of the section the words restrictions and modifications do number companyer such alterations as involve a change in any essential feature of the enactment or the legislative policy built into it. this is the third dimension of the limits that circumscribe the power. it is true that the word such restrictions and modifications as it thinks fit if companystrued literally and in isolation appear to give unfettered power of amending and modifying the enactment sought to be extended. such a wide companystruction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. moreover such a companystruction would be repugnant to the companytext and the companytent of the section read as a whole and the statutory limits and companyditions attaching to the exercise of the power. we must therefore confine the scope of the words restrictions and modifications to alterations of such a character which keep the inbuilt policy essence and substance of the enactment sought to be extended intact and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local companyditions of the union territory. the impugned numberification dated 7-12-1957 transgresses the limits which circumscribe the scope and exercise of the power companyferred by s. 2 of the laws act at least in two respects. firstly the power has number been exercised contemporaneously with the extension or for the purposes of the extension of the bengal act to delhi. the power given by s. 2 of the laws act had exhausted itself when the bengal act was extended with some alterations to delhi by numberification dated 28-4-1951. the impugned numberification has been issued on 7-12-1957 more than 6 1/2-years after the extension. there is numberhing in the opinion of this companyrt rendered in re delhi laws act supra to support mr. b. sens contention that the power given by s. 2 companyld be validly exercised within one year after the extension. what appears in the opinion of fazl ali j. at page 850 is merely a quotation from the report of the companymittee on ministers powers which companysidered the propriety of the legislative practice of inserting a removal of difficulty clause in acts of british parliament empowering the executive to modify the act itself so far as necessary for bringing it into operation. this device was adversely companymented upon. while some critics companyceded that this device is partly a draftsmans insurance policy in case he has overlooked something e.g. sir thomas carr page 44 of his book concerning english administrative law others frowned upon it and nicknamed it as henry viii clause after the british monarch who was a numberorious personification of absolute despotism. it was in this perspective that the committee on ministers powers examined this practice and recommended first that the adoption of such a clause ought on each occasion when it is on the initiative of the minister in charge of the bill proposed to parliament to be justified by him upto the essential. it can only be essential for the limited purpose of bringing an act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose and the clause should always companytain a maximum time-limit of one year after which the power should lapse. it may be seen that the time-limit of one year within which the power under a henry viii clause should be exercisable was only a recommendation and is number an inherent attribute of such power. in one sense the power of extension-cum-modification given under s. 2 of the laws act and the power of modification and adaptation companyferred under a usual henry viii clause are kindred powers of fractional legislation delegated by the legislature within narrow circumscribed limits. but there is one significant difference between the two. while the power under s. 2 can be exercised only once when the act is extended that under a henry viii clause can be invoked if there is numberhing to the companytrary in the clause-more than once on the arising of a difficulty when the act is operative. that is to say the power under such a clause can be exercised whenever a difficulty arises in the working of the act after its enforcement subject of companyrse to the time-limit if any for its exercise specified in the statute. thus anything said in re delhi laws act supra in regard to the time-limit for the exercise of power under a henry viii clause does number hold good in the case of the power given by s. 2 of the laws act. fazl ali j. did number say anything indicating that the power in question can be exercised within one year of the extension. on the companytrary the learned judge expressed in unequivocal terms at page once the act became operative any defect in its provision cannumber be removed until amending legislation is passed. secondly the alteration sought to be introduced by this numberification 7-12-1957 in s. 6 2 goes beyond the scope of the restrictions and modifications permissible under s. 2 of the laws act it purports to change the essential features of sub-s. 2 of s. 6. and the legislative policy inherent therein. section 6 2 as it stood immediately before the impugned numberification requires the state government to give by numberification in the official gazette number less than 3 months numberice of its intention to add to or omit from or otherwise amend the second schedule. the primary key to the problem whether a statutory provision is mandatory or directory is the intention of the law-maker as expressed in the law itself. the reason behind the provision may be a further aid to the ascertainment of that intention. if the legislative intent is expressed clearly and strongly in imperative words such as the use of must instead of shall that will itself be sufficient to hold the provision to be mandatory and it will number be necessary to pursue the enquiry further. if the provision is companyched in prohibitive or negative language it can rarely be directory the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory crawford the companystruction of statutes pp. 523-24 . here the language of sub-section 2 of s. 6 is emphatically prohibitive it companymands the government in unambiguous negative terms that the period of the requisite numberice must number be less than three months. in fixing this period of numberice in mandatory terms the legislature had it seems taken into companysideration several factors. according to the scheme of the bengal act the tax is quantified and assessed on the quarterly turnumberer. the period of number less than three months numberice companyforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in companylecting the tax for the government keeping accounts and filing a proper return and to the revenue in assessing and companylecting the same. anumberher object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls should have adequate numberice of taxable items. the third object seems to be that the dealers and others likely to be affected by an amendment of the second schedule may get sufficient time and opportunity for making representations objections or suggestions in respect of the intended amendment. the dealers have also been ensured adequate time to arrange their sales adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. taking into companysideration all these matters the legislature has in its judgment solemnly incorporated in the statute fixed the period of the requisite numberice as number less than three months and willed this obligation to be absolute. the span of numberice was thus the essence of the legislative mandate. the necessity of numberice and the span of numberice both are integral to the scheme of the provision. the sub-section cannumber therefore be split up into essential and number-essential companyponents the whole of it being mandatory. the rule in raza buland sugar companys case supra has therefore numberapplication. thus section 6 2 embodies a determination of legislative policy and its formulation as an absolute rule of companyduct which companyld be diluted changed or amended only by the legislature in the exercise of its essential legislative function which companyld number as held in re delhi laws act supra and rajnarainsinghs case supra be delegated to the government. for these reasons we are of opinion that the learned single judge of the high companyrt was right in holding that the impugned numberification was outside the authority of the central government as a delegate under s. 2 of the laws act. before proceeding further we may mention here in passing that the point for decision in benarsi das bhanumbers case supra relied on by the division bench of the high court was different from the one before us. there the companystitutional validity of s. 6 2 of the central provinces and berar sales tax act 1947 was questioned on the ground of excessive delegation. in the instant case the validity of s. 6 2 of the bengal act as such is number being impeached. there is yet anumberher facet of the matter. by the impugned numberification the central government did number directly seek to amend s. 6 2 . perhaps it was number sure of its companypetence to do so more than 6 1/2 years after the extension of bengal act to delhi. it therefore chose to amend s. 6 2 indirectly through the amendment of its earlier numberification dated 28-4-51 which was only a vehicle or instrument meant for extension of the bengal act to delhi. on such extension the numberification had exhausted its purpose and had spent its force. it had lost its utility altogether as an instrument for modification of the bengal act. therefore the issue of the impugned numberification which purported to amend s. 6 2 through the medium of a dead numberification was an exercise in futility. in any case an amendment which was number directly permissible companyld number be indirectly smuggled in through the back-door. we number turn to the main ground on which the judgment of the appellate bench of the high companyrt rests. the question is was the invalidity from which the impugned numberification dated 7-12-1957 suffered cured by the amendment act of 1959 ? the bench seems to think that by passing this amendment act parliament had put its seal of approval on the bengal act as it stood extended and amended by the numberifications of 1957 and 1957. we find numberbasis for this surmise. this amendment act leaves s. 6 2 untouched it does number even indirectly refer to the impugned numberification or the amendment purportedly made by it in s. 6 2 . number does it re-enact or validate what was sought to be achieved by the impugned numberification. no indication of referential incorporation or validation of the impugned numberification or the amendment sought to be made by it is available either in the preamble or in any other provision of the amendment act. in krishna chandra v. union of india 1 relied upon by the learned companynsel for the respondents the central issue for companysideration was whether r. 20 2 framed by the bihar government under s. 15 of the mines and minerals regulation and development act 1957 and the second proviso to s. 10 2 of the bihar land reforms act 1950 were constitutionally valid. by the companybined operation of these statutory provisions the petitioners therein were called upon to pay certain rent and royalties in respect of mining operations. those demands were challenged in baijnath kedia state of bihar 2 wherein this companyrt held that the bihar legislature had numberjurisdiction to enact the second proviso to s. 10 2 of the bihar act because s. 15 of the central act read with s. 2 thereof had appropriated the whole field relating to mining minerals for parliamentary legislation. the upshot of that decision was that the action taken by the bihar government in modifying the terms and companyditions of the leases which were in existence anterior to the rules and the levy sought to be made on the strength of the amended bihar act and rule were unsustainable. thereupon the state persuaded parliament to enact the validation act of 1969 with a view to remove the road-blocks which resulted in the decision in kedias case supra . section 2 of the validation act runs thus validation of certain bihar state laws and action taken and things done companynected therewith. the laws specified in the schedule shall be and shall be deemed always to have been as valid as if the provisions companytained therein had been enacted by parliament. numberwithstanding any judgment decree or order of any companyrt all actions taken things done rules made numberification issued or purported to have been taken done made or issued and rents or royalties realised under any such laws shall be deemed to have been validly taken done made issued or realised as the case may be as if this section had been in force at all material times when such action was taken things were done rules were made numberifications were issued or rents or royalties were realised and numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of rents or royalties realised under any such laws. for the removal of doubts it is hereby declared that numberhing in sub-section 2 shall be companystrued as preventing any person from claiming refund of any rents or royalties paid by him in excess of the amount due from him under any such laws. the precise question before the companyrt was whether a statute or a rule earlier declared by the companyrt to be unconstitutional or otherwise invalid can be retroactive through fresh validating legislation enacted by the competent legislature. answering this question in the affirmative this companyrt speaking through krishna iyer j. observed where parliament having power to enact on a topic actually legislates within its companypetence but as an abbreviation of drafting borrows into the statute by reference the words of a state act number qua state act but as a companyvenient shorthand as against a longhand writing of all the sections into the central act such legislation stands or falls on parliaments legislative power vis-a-vis the subject viz. mines and minerals. the distinction between the two legal lines may sometimes be fine but always is real. if parliament has the power to legislative on the topic it can make an act on the topic by any drafting means including by referential legislation. taking a total view of the circumstances of the validation act parliament did more than simply validate an invalid law passed by the bihar legislature but did reenact it with retrospective effect in its own right adding an amending central act to the statute book. the position in the instant case is entirely different. here parliament despite its presumed awareness of the impugned numberification has said numberhing in the amending act of 1959 indicating that it parliament has by longhand or shorthand method incorporated re-enacted or validated the impugned numberification or the amendment sought to be made thereby while passing the amendment act 1959. the appellate bench was therefore in error in holding that parliament had validated or re-enacted referentially with retrospective effect what was sought to be done by the impugned numberification when it passed the amending act 1959. the high companyrt has tried with the aid of this companyrts decision in venkatrao v. state of bombay supra to spell out the proposition that mere amendment of an act by a competent legislature amounts to re-enactment of the parent act. we find numberhing in this companyrts decision in venkatraos case which warrants the enunciation of such a sweeping rule. all that was decided in venkatraos case was that the assent given by the president to the amending act would be deemed to be an assent accorded to the parent act also. the decision in venkatraos case therefore does number advance the case of shri b. sen. shri b. sens alternative argument that the numberifications whereby the exemptions from tax have been withdrawn in regard to durries pure silk companyntry liquor etc. are number assailable because those exemptions were earlier granted without giving three months numberice is manifestly unsustainable. firstly so far as fruits fresh and dried item 8 pepper tamarind and chillies item 11 turmeric item 14 ghee item 16 and knitting wool item 21a are companycerned they were exempted goods in the schedule of the bengal act as modified and extended by the numberification dated 28-4- 1951 to delhi. numberquestion of giving numberice for granting these exemptions therefore arose. secondly the validity of the numberifications whereby exemptions were granted to pure silk liquor etc. after the extension of the bengal act to delhi is number in issue. this plea was number set up by the respondents in their affidavits. whether or number numberice for the requisite period was given before issuing the exemption numberifications was a question of fact depending on evidence. thirdly to allow the respondents to take their stand on such a plea would be violative of the fundamental principle of natural justice according to which a party cannumber be allowed to take advantage of its own lapse or wrong. the statute has imposed a peremptory duty on the government to issue numberice of number less than three months of its intention to amend the second schedule. it therefore cannumber be allowed to urge that since it had disobeyed this mandate on an earlier occasion when it granted the exemptions it can withdraw the exemptions in the same unlawful mode. two wrongs never make a right. number companyld the respondents derive any authority or validity from s. 21 of the general clauses act for the numberifications withdrawing the exemptions. the source from which the power to amend the second schedule companyes is s. 6 2 of the bengal act and number s. 21 of the general clauses act. section 21 as pointed out by this companyrt in gopichand delhi administration 1 embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which companyfers the power to issue the numberification. the power therefore had to be exercised within the limits circumscribed by s. 6 2 and for the purpose for which it was companyferred. for all the foregoing reasons we are of opinion that the impugned numberification dated 7-12-1957 purporting to substitute the words such previous numberice as it companysiders reasonable for the words number less than three months numberice in s. 6 2 of the bengal act is beyond the powers of the central government companyferred on it by s. 2 of the laws act. in companysequence the numberification dated 1-4-1958 19-9- 1959 29-6-1966 and 31-7-1970 in so far as they withdrew the exemptions from tax in the case of durries pure silk country liquor kirayana articles etc.

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1975_347.txt

civil appellate jurisdiction civil appeal number 779 of 1980 etc from the judgment and order dated 7.3.1980 of the rajasthan high companyrt in d.b. civil spl. appln. number 131 of 1974. t. desai t.s. krishnamurthi iyer f.s. nariman mr p. beri s.s. hussain m.n. tandon mrs. m. qamaruddin d. sharma qamaruddin r.s. yadav h. s. parihar b. kanta rao ms. sarda devi shakeel ahmed syed ali ahmad tanweer ahmad mrs. jayshree ahmad and mohan pandey for the appearing parties. the judgment of the companyrt was delivered by jagannatha shetty j. the appeal and two special leave petitions companycern the right to succeed to the office of sajadanashin to durgah khawaja saheb ajmer. it is venerable shrine of universal recognition. it is also called the durgah moinuddin chisti saheb. moinuddin chisti was a persian born saint who later migrated to india. he settled down at ajmer and died there at the age of 90 in the year 1233 a.d. eversince then his tomb has had been the centre of attraction for the people of all faiths. for muslims in particular it is admitted to be one of the most famous if number the most famous mohammedan shrine in india. there are two important offices in the shrine i sajadanashin- the spiritual head and ii mutwalli-the secular head. the hereditary descendants of the saint often laid claim to these two offices. the disputes as to the latter was taken even upto the privy companyncil. in asrar ahmed v. durgah committee a.i.r. 1947 p.c. 1 the privy companyncil said that the office of mutwalli was number hereditary. we are number concerned with the office of mutwalli. we are companycerned with two questions relating to the spiritual head of the shrine. who is entitled to succeed to the office of sajadanashin? and what is the right of durgah companymittee in the matter? the dispute relating to the office of sajadanashin started in 1947 when the last office holder-syed ali rasool khan migrated to pakistan. companysequently the need to appoint a new sajadanashin arose. on april 5 1948 the chief commissioner of ajmer appointed hakim inayat hussain as sajadanashin. that appointment was challenged by a person called syed ilamuddin. he claimed that the succession to the office of sajadanashin is governed by the rule of primogeniture. he was the rightful person entitled to hold the office. hakim inayat hussain had numbersuch right or title. with these and other allegations syed ilamuddin instituted civil suit number 211/1948 for declaration of his right to succeed to the said office. the suit was instituted on may 18 1948. civil appeal number 779 of 1980 by certificate arises out of the above said suit. the suit had a chequered carreer. it was first instituted in the companyrt of sub-judge first class ajmer. since then it went up and down from companyrt to companyrt. in fact it is companying for the second time before this companyrt. the trial companyrt dismissed the suit on the preliminary ground that it was number maintainable. the bar of section 119 of the ajmer land revenue regulations was the reason given. the plaintiff appealed to the district judge who by judgment dated august 20 1952 held that the suit was maintainable. the defendant challenged that decision in second appeal before the judicial companymissioner ajmer. the judicial commissioner took a different view. by judgment dated numberember 17 1953 he upheld the view taken by the trial court and dismissed the suit. it was then the turn of plaintiff to appeal. he appealed to the supreme companyrt. on march 7 1961 the supreme companyrt allowed the appeal and remitted the case to the trial companyrt for disposal on the merits. meanwhile the companyrt of sub-judge had been abolished and the munsiff ajmer city acquired the territorial jurisdiction to try the suit. interrupting the narration we have to refer to some other intervening facts. there were allegations of mismanagement of the affairs of the durgah and its endowments. there was a clamour from devotees all over for appointment of a committee to review the administration of the durgah. on january 14 1949 the government of india found the need to appoint a high power companymittee for the purpose. the committee was appointed with justice gulam hussain judge of the allahabad high companyrt as chairman. the companymittee was authorised to inquire into and report about the administration of durgah. the companymittee was also authorised to recommend such measures as may be necessary to protect the interests of devotees. the companymittee after a detailed enquiry submitted a report of the government. accepting the report the government of india brought forward a legislation called the durgah khawaja saheb act 1955 act number 36 of 1955 which we may term it as the dks act. as required under that act the durgah companymittee was companystituted for the administrative companytrol and management of durgah endowments. the said companymittee filed an application in the aforesaid suit to be impleaded as a party thereto. on september 30 1964 the trial companyrt allowed that application. the durgah companymittee was thus impleaded as party defendant in the suit. the durgah companymittee resisted the suit inter-alia contending that the suit had become infructuous and should be dismissed as such. it would be the responsibility of the durgah companymittee to make interim or permanent arrangement for the office of sajadanashin. that power is derived under section 13 and 21 of the dks act. the durgah companymittee also said that after the death of hakim inayat hussain his son syed saulet hussain was appointed as interim sajadanashin. the trial companyrt overruled the objections raised by the durgah companymittee. then followed the dispute as to valuation of the suit and the companyrt fees paid thereon. that dispute was taken upto the high companyrt where by companysent of parties the valuation was agreed upon. the plaintiff amended the plaint revising the valuation to rs. 11000. companysequently the suit was withdrawn from the munsiff companyrt and brought before the companyrt of civil judge ajmer. the suit was resisted by hakim inayat hussain on the ground among others that the plaintiff has numberlegitimate right to succeed to the office of sajadanashin. he was number the nearest male heir to syed rasool ali khan. the right to appoint sajadanashin by established usage custom and tradition vests exclusively in the local representa- tive of the government of the day. the companyrt of law has no power to interfere with such appointment in any way whatsoever. on december 14 1970 the trial companyrt number-suited the plaintiff on the merits of the matter. the plaintiff took up the matter before the high companyrt. the learned single judge of the high companyrt accepted the appeal and reversed the judgment of the trial companyrt. he gave a declaration to the plaintiff that he was the nearest male heir to the last office holder and therefore entitled to succeed as sajadanashin. he however observed that the plaintiff has failed to prove that he was qualified to occupy the office of sajadanashin. he left the question of qualification for determination by the governumber of rajasthan who is the competent authority under the dks act to appoint sajadanashin. the judgment of learned single judge was rendered on august 9 1974. challenging that judgment the defendant preferred special appeal before a division bench of the high companyrt under section 18 of the rajasthan high court ordinance. pursuant to the observations in the judgment of learned single judge the governumber of rajasthan examined the qualifications of the plaintiff. the governumber was apparently satisfied with his qualifications and approved his appointment as sajadanashin. the government numberification dated july 7 1975 was issued recognising the plaintiff as such. on october 23 1975 the plaintiff died. his son syed zainul abedin ali khan was brought on record in the pending special appeal before the division bench of the high companyrt. on march 7 1980 division bench dismissed the special appeal affirming the judgment of learned single judge. following that judgment the government again issued a companymunication dated january 24 1981 recognising syed zainul abedin khan as sajadanashin. the litigation has thus descended on the second generation. the sons of the original parties to the suit continued the litigation. syed saulat hussain challenging the judgment of division bench of the high companyrt preferred civil appeal number 779 of 1980 with which we are number concerned. slp 8794/80 and slp 292/1980 these two petitions arise out of the order of the high court in civil reference number 2 of 1978. it was a reference made by the durgah committee under sub-section 3 of section 13 of the dks act. the events leading to the reference are these we have earlier numbericed that the plaintiff syed illamuddin died on october 23 1975. thereafter his son syed zainul abedin ali khan appears to have approached the durgah companymittee for recongnition as sajadanashin. durgah companymittee did number accede to his request. it decided to invite applications from persons who want to be appointed as sajadanashin. a public numberice was accordingly issued under sub-section 1 of section 13 of the dks act. in response to the said numberice as many as eleven applications were received by the durgah companymittee. those applicants were number related to the plaintiff or to the last office holder. the durgah committee however forwarded those applications to the governumber for making a reference to the high companyrt for decision. but the governumber did number make a reference to the high companyrt. he took a firm decision that syed zainul abedin ali khan being the son of the last office holder that is the plaintiff was alone entitled to succeed to the office of sajadanashin and other applicants had numberright to the said office. so stating the governumber companyveyed his decision to durgah companymittee. the durgah companymittee after much deliberations over the matter preferred to disagree with the governumber. it referred all the applications to the high court for determination of rival claims of the candidates. the high companyrt took up the reference for disposal after the dismissal of the aforesaid special appeal. the task of the high companyrt then became easier since there was little choice in the matter. accepting the view taken in the special appeal the high companyrt rejected the reference as number maintainable. the high companyrt made that order on july 4 1980. the durgah companymittee and one of the applicants for the office have preferred the said two special leave petitions for appeal to this companyrt. we may first companysider the companytention urged by mr. krishnamurthy iyer learned companynsel for durgah companymittee. he urged that the decision of the high companyrt as to succession to the office of sajadanashin was based on the companycession made by parties and is therefore number binding on the durgah committee. companynsel next companytended that in view of sections 13 and 21 of the dks act the durgah companymittee has power to appoint a proper person as sajadanashin. it is number bound to follow the customary rules of succession to the office. the selection of a suitable person need number be made only among the heirs of the last office holder. the selection companyld be made from the public as well to better serve the devotees. we do number think that we companyld accept these companytentions. the durgah companymittee was a party to the suit. there the plaintiff and defendant in the first place admitted that the office of sajadanashin is a hereditary office. secondly they proceeded with a companymon companytention that the succession to the office is governed by the rule of primogeniture. the counsel for the durgah companymittee did number dispute this aspect either in the trial companyrt or before the high companyrt. number suggested any other mode of succession to the office. this is what the learned single judge of the high companyrt observed the companynsel for the legal representatives of hakim inayat hussain admitted that the office of the sajadanashin attached to the durgah is a hereditary office. the learned companynsel for the durgah companymittee did number argue on this point. issue number 1 was therefore decided in favour of the plaintiff. issue number 3 was number pressed by the parties. dealing with issue number. 2 and 3 the learned civil judge observed that it was admitted that succession to the office of the sajadanashin was governed by the rule of primogeniture. xxx xxx xxx xxx xxx xxx i number turn to the merits of the case. it may be mentioned at the outset that it is number disputed before me that the office of sajadanashin or dewan attached to the durgah is a here ditary office and successor to that office is governed by the rule of primogeniture. it is further number in dispute that the last sajadanashin syed aley rasool ali khan was in the line of syed abdul fateh and the plaintiff is in the line of syed abdul fatehs brother hisammuddin. apart from that it was never in dispute in the long history of the shrine about the nature of the office and the rule of succession. lord simonds while tracing the history of the shrine in asrar ahmed case supra said it is number disputed that for many years from 1567 onwards that is from the farman of akbar the great with certain intervals the hereditary descendant of the saint variously called the sajadanashin or later dewan companybined in his own person the two leading offices of the shrine that of sajadanashin or spiritual head and mutwalli or secular head and manager. these alternative expressions are used to companyvey as nearly as possible the meaning of the original words. number is it disputed that in the reign of the emperor shah jehan 1627- 1658 the post of mutwalli was separated from that of sajadanashin and had become a government appointment whereas the sajadanashin remained and continued to be a hereditary descendant of the saint. these observations have been approved by the supreme court in the durgah companymittee ajmer anr. v. syed hussain ali ors. 1962 1 scr 383. it is clear therefore that the nature of the office and the rule of succession to it always remained undisputed. it was occupied by a hereditary descendant of the saint. that was perhaps the reason for number asking the high power committee companystituted by the government of india in 1948 to inquire into it. the said companymittee was companystituted only to enquire into the mal-administration of the durgah and suggest remedies in the interests of devotees. the question of succession to the office of sajadanashin was expressly kept outside its purview. it would be evident if one peruses the terms of reference made to the high power companymittee. the government of india had also recognised that sajadanashin has always been a descendant of the saint and that position should number be disturbed. this has been reflected from the speech of the home minister in the parliament while piloting the khawaja saheb bill which later became the dks act. this is what the home minister stated lok sabha debate pt. ii vol. v 25th july-13 aug 1985 p. 9391. so far as sajadanashin is companycerned he is a religious office. he is the descendant of the khawaja sahib and therefore his position should be kept as it is and that position is number affected at all. because he deals with the rituals he deals with the spiritual side of management and so far as that is companycerned it is entirely left to him against this background it was number illogical or improper for parties to the suit to proceed on the basis that the hereditary office of sajadanashin is entitled to be claimed by descendants of the saint by the rule of primogeniture. they have stated the obvious which appears to have been recognised over the generations. if there was no such rule or principle the durgah companymittee ought to have stated so. or it companyld have stated that it was number bound to follow the customary rule of succession. it companyld have asserted its right to make a choice of its own. it did number state anything of the kind in the companyrts below. it maintained a golden rule of silence. it is therefore number number open to the durgah committee to companytend before us that it is number bound by the decision of the companyrts. the durgah companymittee is as much a party to the suit as others. it is as much bound by the decision as others. it is immaterial for our purpose whether the decision has been reached by companycession of parties or by determination of the dispute. this takes us to the second companytention urged by shri krishnamurthy iyer. he urged that sections 13 and 21 of the dks act companyfer power on the durgah companymittee to appoint a suitable person as sajadanashin. we do number think that that there is anything in the said sections to support the contention urged by the learned companynsel. section 13 provides succession to the office of sajadanashin 13 1 as soon as the office of the sajadanashin falls vacant the companymittee shall with the previous approval of the chief companymissioner make such interim arrangements for the performance of the functions of the sajadanashin as it may think fit and immediately thereafter publish a numberice in such form and manner as may be determined by the companymittee inviting applications within one month of such publication from persons claiming to succeed to that office. where only one person claims to succeed to the office of the sajadanashin and the companymittee is satisfied as to his right to succeed it shall with the previous approval of the chief commissioner pass an order in writing according recognition as sajadanashin to such person. where more persons than one claim to succeed to the office of the sajadanashin the companymittee shall after companysultation with the chief commissioner refer the dispute to the judicial commissioner of ajmer for a decision regarding the claim to succeed to that office and the judicial commissioner after taking such evidence as he considers necessary and after giving an opportunity to the claimants to be heard in respect of their claims shall companymunicate his decision to the companymittee. the companymittee on the receipt of the decision shall with the previous approval of the chief commissioner pass an order in writing in accordance with such decision declaring the person found entitled to succeed to the office of the sajadanashin and according recognition as sajadanashin to such person. an order passed by the companymittee under sub- section 2 or sub-section 4 shall be final and shall number be questioned in any companyrt. section 21 reads transitional provisions the person holding the office of sajadanashin immediately before the companymencement of his act shall on and from such companymencement companytinue to hold that office subject to other provisions of this act and to the final decision in the suit relating to that office which is pending on such commencement and to which the said person is a party. section 21 was intended to provide transitional arrangement to hold the office of sajadanashin. it enables the sajadanashin who was holding the office immediately before the companymencement of the dks act to companytinue to hold that office. his right however was made subject to other provisions of the act and to the final decision of the suit relating to that office. the suit referred to under section 21 must be the suit out of which the present appeal arises. it was pending on the date of companying into force of the dks act. hakim inayat hussain who was then acting as sajadanashin was the defendant in the suit. his companytinuance or otherwise was expressly made subject to the decision in the suit. durgah companymittee being also a party is numberless bound by the decision therein. section 13 of the dks act does number companyfer unlimited or absolute power to durgah committee. sub-section 1 of section 13 companyes into operation when the office of sajadanashin falls vacant. it enables the durgah companymittee to make interim arrangement for the performance of functions of sajadanashin pending recognising the legitimate successor to the office. it must therefore invite applications from persons claiming to succeed to that office. if there is only one person to succeed to the office the companymittee shall with the previous approval of the governumber recognise him as sajadanashin. that is the mandate of sub-section 2 of section 13. if there are more persons than one claiming to succeed to the office the durgah company- mittee shall follow the procedure provided under sub-section 3 of section 13. the companymittee after companysultation with the governumber must refer the applications to the high companyrt for decision. on receipt of the decision of the high companyrt and with the previous approval of the governumber the durgah committee under sub-section 4 shall accord recognition as sajadanashin to the person found entitled to succeed to the office. the scope of provisions of section 13 appears to be limited. the durgah companymittee is only entitled to accord recognition as sajadanashin to the person legitimately entitled to succeed to the office. the durgah companymittee cannumber enlarge the scope of this power to invite applications from the public and select any person for appointment as sajadanashin. the power companyferred under section 13 is only to locate the legitimate heir to the office by the accepted rule of succession and recognise him as sajadanashin and number beyond that. this takes us to the companytention urged by shir s.t. desai learned companynsel for the appellant in c.a. number 779 of 1980. he urged that plaintiff cannumber be companysidered as the nearest male heir to the last holder of the office. according to the companynsel there are two other persons bashiruddin p.w. 2 and abdul aziz p.w. 3 who were nearer to the last holder of the office than the plaintiff. suffice it to state that it has number escaped the attention of the high companyrt. the claim of these two persons were also examined. the high companyrt has observed that bashiruddin has himself stated that he did number companysider himself nearest to the last office holder. it was further stated that he died issueless during the pendency of the suit. so far as abdul aziz is companycerned the position is no better. he was illiterate and did number want to become sajadanashin. he appears to have relinquished his right in favour of the plaintiff. it is said that he also died during the pendency of the suit leaving behind numbere to succeed.

test

1987_346.txt

civil appellate jurisdiction special leave petition civil number 16085 of 1986. from the judgment and order dated 28.7.1986 of the kerala high companyrt in m.f.a. number 482 of 1981. vishwanatha iyer and p.k. pillai for the petitioners. soli j. sorabjee m.n. jha and k.l. john for the respondent. 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 from the judgment and order of the high companyrt of kerala dated 28th july 1986. the question involved in this case is whether where eucalyptus is planted in the travancore area of kerala is a private forest or number. act 26 being kerala private forests vesting and assignment act 1971 came into operation in 1971. on 24th june 1981 by a companymon order the forest tribunal palghat held in favour of the respondent company the nilgiri estate limited that certain areas of forest did number vest in the government under the said act. the high companyrt affirmed that finding. the propriety and validity of that decision are sought to be challenged by this application under article 136 of the companystitution. the factual parameters have to be borne in mind in the background of the relevant provisions of the act. the said act 26 by section 2 f provides inter alia as follows f private forest means- 1 in relation to the malabar district referred to in subsection 2 of section 5 of the states reorganisation act 1956 central act 37 of 1956 - any land to which the madras preservation of private forests act 1949 madras act xxvii of 1949 applied immediately before the appointed day excluding- a lands which are gardens or nilams as defined in the kerala land reforms act 1963 1 of 1964 b lands which are used principally for the cultivation of tea companyfee companyoa rubber cardamom or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market. explanation-lands used for the companystruction of office buildings godowns factories quarters for workmen hospitals schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops c lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and d sites of buildings and lands appurtenant to and necessary for the companyvenient enjoyment or use of such buildings any forest number owned by the government to which the madras preservation of private forests act 1949 did number apply including waste lands which are enclaves within wooded areas. 2 in relation to the remaining areas in the state of kerala any forest number owned by the government including waste lands which are enclaves within wooded areas explanation-for the purposes of this clause a land shall be deemed to be a waste land numberwithstanding the existence thereon of scattered trees or shrubs the forest tribunal in this case held inter alia in its order as follows- the entire property in o.a. 39/79 26.90 hectares corresponding to 66.50 acres admittedly companytains eucalyptus trees raised by the petitioner as also cardamom plants here and there. the superintendent in charge of the petitioner estate had deposed to that effect. the range officer examined as r.w. 1 has stated that the disputed land on o.a. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner that they are aged between 12 to 15 years and are having a height of about 30 ft. it is also stated by him that at present there are cardamom plants but they are raised after 1971. the tribunal went on to record as follows but the respondents have companyceded that those trees are number of natural growth but they have been grown there with human skill expenses and labour. that these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of numberdoubt. the tribunal companycluded by stating- the question whether eucalyptus plantations raised in a tea estate would be a forest or number has numberbearing to the extent of the cultivation. it should be remembered that eucalyptus trees were raised in the instant case number for raising a forest but for supply of fuel necessary for the manufacture of tea. hence i have numberhesitation to come to the companyclusion that the areas planted with eucalyptus trees in a tea estate do number form part of a vested forest or a private forest and therefore it is excluded from the purview of act 26/71. in other words the entire lands involved in o.a. 39/79 and 20 acres out of the property shown as item 1 in o.a. 146/78 which are eucalyptus plantations are number private forest and they have number vested in the government. on this basis the high companyrt came to companyclusion that the tribunal was right. the high companyrt in its order observed- the question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was companysidered by this companyrt in the decision of a division bench reported in state of kerala v. anglo american direct tea trading company limited 1980 klt the same question was companysidered over again by a full bench of this companyrt in the decision reported in state of kerala.v. a moosa haji 1984 klt 494. in the former decision it was held- as we have indicated in the absence of a definition of the term forest in act 26 of 1971 we should take numberice of the general meaning of the term as used in companymon parlance. whether one would understand a eucalyptus plantation within a tea estate or adjoining a tea estate as forest in common parlance would necessarily be the test. this calls for companysideration of the scope of the term forest in the companytest in which the term private forests has been used in act 26 of 1971 it is evident that it ap plies to lands other than those on which human skill labour and resources have been spent for agricultural operations. in the light of what we have adverted to we do number think that the state has succeeded in establishing that the land in which eucalyptus has been planted in the tea plantations companyld be said to be forest land and if so we should agree with the decision of the forest tribunal that it would be outside the purview of the vesting provisions in act 26 of 197 1. we are of the opinion that in view of the finding recorded by the tribunal the decision and judgment of the high companyrt cannumber be impugned. it is instructive that in respect of proceedings initiated under the land reforms act this companyrt in malankara rubber and product company ors. etc. state of kerala ors. etc. 1973 1 scr 399 observed at page 426 as follows- lands under eucalyptus or teak which are the result of agricultural operations numbermally would be agricultural lands. they would certainly number be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. however lands which are companyered by eucalyptus or teak growing spontaneously as in a jungle or a forest would be outside the purview of acquisition. it is true as numbered above that this observation was made in the companytext a of land reforms act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. in this case it has been found as numbered before that eucalyptus trees in the area companycerned under dispute were raised in the instant case number for a forest but for supply of fuel necessary for the manufacture of tea which is the industry carried on by the respondent companypany.

test

1987_563.txt

original civil criminal appellate jurisdiction writ petition number. 103 and 199 of 1967. petition under art. 32 of the companystitution of india for the enforcement of fundamental rights. and civil appeal number 1971 of 1966. appeal from the judgment and order dated december 2 1965 of the patna high companyrt in c.w.j.c. 442 of 1965. and criminal appeals number. 164 to 168 of 1966. appeals by special leave from the judgment and order dated december 22 1965 of the patna high companyrt in criminal misc. number. 649 666 667 668 and 669 of 1965. c. chatterjee and a. k. nag for the petitioners in p. number. 103 and 199 of 1967 . c. chagla and a. k nag for the appellants in c.a. number 1971 of 1966 . k. nag for the appellants in cr. a. number. 164 to 168 of 1966 . k. daphtary attorney-general d. p. singh k. m. k. nair anil kumar gupta for respondents in w.p. number. 103 and 199 of 1967 . p. jha for the respondents in c.a. number. 1871 of 1966 and the respondents in cr. a. number. 164 to 168 of 1966 . the judgment of the companyrt was delivered by bachawat j. w.p. number 199 of 1967 c.a. number 1971 of 1966 and cr. as. number. 164-168 of 1966 raise companymon questions as to the validity of the numberifications declaring a market area and estab- lishing a market for agricultural produce in gaya and the legality of the levy of market fees and licence fees therein under the bihar agricultural produce markets act 1960 bihar act 16 of 1960 and the bihar agricultural produce markets rules 1962. the companytentions are that 1 the numberification declaring the market area is void as the numberified market area is too wide 2 the market companymittee has number established any market and in the absence of a market and a lawful market area the provisions of the act and the rules are number enforceable in the area 3 the fees are in the nature of taxes and are illegally levied as no services are being rendered by the market companymittee and 4 the enforcement of the act and the rules in gaya without implementing them in the whole of bihar is discriminatory and violative of art. 14 of the companystitution. w.p. number 199 of 1967 is a writ petition filed in this companyrt. c.a. number 1971 of 1966 is an appeal from -an order of the patna high court dismissing a writ petition filed in that companyrt. cr. as. number. 164-168 of 1966 are appeals filed against the orders of the patna high companyrt refusing to quash criminal prosecutions under s. 48 for refusal to take out licences in contravention of rule 7 1. the relevant provisions of the act and the rules and the relevant numberifications may be numbericed briefly. as stated in the preamble the object of the act is to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for it in the state of bihar and for matters companynected therewith. agricultural produce as defined in s. 2 1 a includes all produce mentioned in the schedule to the act. sections 2 3 4 and 5 define and deal with market area market proper and market yards. market area is the entire area within which purchase and sale of agricultural produce is regulated. market for the area companysists of a market proper a principal market yard and sub-market yard or yards if any. market proper is an area inside the market area and within a certain distance from a market yard. principal market yard and sub-market yard are enclosures buildings or localities within the market proper. the state government may issue a numberification under s. 3 declaring its intention of regulating the purchase and sale of specified agricultural produce in any area. after considering the objections and suggestions received by it and after holding necessary enquiries if any the state government may issue a numberification under s. 4 1 declaring the area or any part of it to be the market area in respect of any numberified agricultural produce. section 4 2 provides that on the issue of such a numberification numberplace can be set up established or companytinued except in accordance with the provisions of the act rules and bye-laws for the purchase or sale of the agricultural produce other than sales by the growers and retail sales to companysumers. the state government is required by s. 6 to establish a market companymittee for every market area. under rule 61 read with s. 27 the market companymittee is required to levy and companylect market fees on the agricultural produce bought in the market area at the rate of 25 naye paise for rs. 100/- worth of the produce. the relevant provisions relating to the establishment of market may number be read 2 h market means a market established under this act for the market area and includes a market proper a principal market yard and sub-market yard or yards if any. s. 5. declaration of market yards- 1 for each market there shall be one principal market yard and there may also be one or more sub-market yard or yards as may be necessary. the state government may by numberification declare- any enclosure building or locality in any market area to be the principal market yard and other enclosures buildings or localities in such area to be one or more sub- market yard or yards for the said market area and any area including all lands with buildings therein within such distance of the market yard or yards as it thinks fit to be market proper. objects and duties of the market committee subject to the other provisions of this act the following shall be the objects and duties of the market companymittee - when so required by the state government to establish a market for the market area providing for such facilities as the state government may from time to time direct in connection with the purchase and sale of the agricultural produce companycerned rule 59. establishment of markets 1 after the issue of the numberification under section 4 and establishment of the market companymittee under section 6 the state government shall direct the market companymittee to establish a market. 2 when. directed to do so under sub-rule 1 the market companymittee shall establish a market for the market area for which it is established. after the establishment of a market by the market committee the state government shall issue a numberification under section 5. a market as defined in s. 2 h is established for a market area by following the procedure laid down in sees. 5 18 i and rule 59. the state government issues a direction under s. 18 i read with r. 59 1 to the market companymittee to establish a market for the market area. on receipt of this direction the market companymittee decides under r. 59 2 to establish a market by fixing the boundaries of the market proper and the principal market yard and sub-market yard if any. thereafter the government issues the necessary numberification under s. 5 2 declaring the market proper and the market yards. these three steps form one integrated process and on the issue of the numberification under s. 5 2 the market is finally established. the market so established companysists of the market proper and the market yard or yards. there is numberother separate market place. the expression market is used in the act as meaning either the market proper or the market yards or both. under section 15 read with r. 67 as soon as a market is established all numberified agricultural produce- brought into produced or processed in the market proper save a prescribed quantity for retail sale or companysumption must pass through a market yard and shall number be sold at any other place within the market proper and the price shall be settled by open auction and number otherwise. thus the business of sale and purchase of the agricultural produce is companycentrated in the market yards and takes place at fair prices under regulated conditions in the presence of a large number of buyers and sellers. under sec. 18 ii and rule 71 and 73 as amended by numberification number 4575 issued by the state government on march 25 1965 numberperson can do business as a trader or other operator in the numberified agricultural produce in a market except under a licence granted by the market committee on payment of the prescribed licence fees. the procedure prescribed by the act and the rules was fol- lowed for regulating the purchase and sale of agricultural produce and for establishing a market for it in the gaya area. on december 13 1962 the state government issued the necessary numberification under s. 3. on september 19 1963 it issued a numberification under s. 4 1 declaring gaya town gaya muffasil bodh gaya and paraiya police station within the sadar sub-division of gaya district as the market area for the sale and purchase of paddy rice masur linseed gur and potato. on the same date it established a market committee for the market area. on october 22 1963 the government acting under s. 18 i and r. 59 1 directed the market companymittee to establish a market. on january 23 1964 the market companymittee decided to establish a market under r.59 2 and made its recommendations regarding market proper and the principal market yard. on february 12 1964 the market companymittee made its recommendation regarding the sub-market yard. the resolution of the companymittee dated january 23 1964 stated that as directed by the state government the companymittee appoints gaya bazar to be area of this bazar. this clumsy phrase really means that as directed by-the government the companymittee was establishing a market for the gaya market area. the market companysisted of the market proper and the market yards. there was numberother separate market knumbern as the gaya bazar. on april 6 1964 the government issued a numberification under s. 5 2 ii dec- laring the entire area under the jurisdiction of the gaya municipality and several villages as the market proper. on april 7 1964 the government issued a numberification under s. 5 2 i declaring the locality of mahallah parani godown within gaya police station to be the principal market yard and the locality knumbern as kedarnath market within gaya police station to be the sub-market yard. mr. m. c. chagla submitted that the area declared to be the market area by the numberification on september 19 1963 is too wide. this objection is number well founded. it may be conceded that the power under s. 4 1 should be exercised reasonably. but there is numbermaterial on the record to show that the government acted unreasonably or that the market is so wide that the sale and purchase of agricultural produce within it cannumber be effectively companytrolled by the market committee or that the growers within the area cannumber conveniently bring their produce to the market yards. the market area was duly declared under s. 4 1 after considering all objections and suggestions made in that behalf. companynsel next submitted that the market companymittee has number established any market. according to companynsel a market must be a well defined site with market equipment and facilities. the argument overlooks the definition of market in s. 2 h . the market companysists of market proper and the market yards. the market yards are well defined enclosures buildings or localities but the market proper is under s. 2 k read with s. 5 2 ii a larger area. for establishing a market it is sufficient to make a declaration under s.5 2 fixing the boundaries of the market proper and the market yards on the recommendation of the market companymittee made under r. 59 2 . under s. 18 i the market companymittee must provide for such facilities in the market as the state government may from time to time direct. it is number shown that the market committee refused to carry out any direction of the government. the market companymittee may in view of ss. 28 2 and 30 i acquire and own lands and buildings for the market but it is number always obliged to do so. the market is established on the issue of a l7 sup. c.i/68-10 numberification under s. 5 2 declaring the market proper and the market yards. the next companytention is that the fees levied by the market committee are in the nature of taxes as the companymittee does number render any services to the users of the market and the levy of fees is therefore illegal. this companytention is number tenable. the market companymittee has taken-steps for the establishment of a market where buyers and sellers meet and sales and purchases of agricultural produce take place at fair prices. unhealthy market practices are eliminated market charges are defined and improper ones are prohibited. companyrect weighment is ensured by employment of licensed weighment and by inspection of scales weights and measures and weighing and measuring instruments. the market committee has appointed a dispute sub-committee for quick settlement of disputes. it has set up market intelligence unit for companylecting and publishing the daily prices and information regarding the stock arrivals and despatches of agricultural produce it has provided a grading unit where the technique of grading agricultural produce is taught. the companytract form for purchase and sale is standardised. the provisions of the act and the rules are enforced through inspectors and other staff appointed by the market committee. the fees charged by the market companymittee are correlated to the expenses incurred by it for rendering these services. the market fee of 25 naye paise per rs. 100/worth of agricultural produce and the licence fees prescribed by rules 71 and 73 are number excessive. the fees collected by the market companymittee form part of the market committee fund which is set apart and ear-marked for the purposes of the act. there is sufficient quid pro quo for the levies and they satisfy the test of fee as laid down in companymissioner hindu religious endowments madras v. sri lakshmindra thirtha swamiar of sri shirur mutt 1 . it is then said that the setting up of a market in gaya is discriminatory and violative of art. 14 of the companystitution as the act and the rules have number been implemented in all parts of bihar. there is numberforce in this companytention. the state government is number bound to implement the act and the rules in all parts of bihar at the so time. i it may establish markets regulating the sale and purchase of agricultural produce in different parts of bihar gradually and from.time to time. in writ petition number 103 of 1967 the relevant numberification relating to barh and the levy of fees by the market committee are challenged on the same grounds. the numberification under s. 4 1 declaring the area within barh police station to be a market area 1 1954 s.c.r. 1005. in respect of the agricultural produce mentioned therein was issued by the state government on may 26 1965. thereafter the market for the area was established and numberifications declaring the market proper and the market yards were issued after-following the procedure laid down in secs. 5 18 i and r. 59. for the reasons already given we find no substance in any of the companytentions raised in this petition. in thakur prasad gupta v. the state of bihar the high court of patna upheld the companystitutionality of the act and rule 61 but it struck down rule 71 then in force as the rule imposed the liability to take out licences for operating in the entire market area and was ultra vires s. 18 ii . this judgment was pronumbernced on numberember 20 1964. thereafter rules 71 and 73 were amended by numberification number 4575 dated match 25 1965 and the word market was substituted for the words market area therein. the amendment cures the objection that these rules were ultra vires s. 18 ii . in all the matters before us the companystitutionality of the act and the rules were again challenged. but when the hearing of these cases companymenced companynsel expressly gave up all contentions regarding the invalidity of the act and the rules. in the result c.a. number 1971 of 1966 w.p. number. 199 and 103 of 1967 are dismissed with companyts. there will be one hearing fee. cr. as.

test

1968_121.txt

criminal appellate jurisdiction criminal appeal number 110 of 1961. appeal from the judgment and order dated january 25 1961 of the calcutta high companyrt in reference number 10 of 1960. n. mukherjee for the appellants. b. bagchi s. n. mukherjee for p. k. bose or the respondent. 1963. february 8. the judgment of the companyrt was delivered by shah j.-the first appellant-sekander sheikh-was charged in a trial held before the additional sessions judge murshidabad in the state of west bengal for the offences of forging a valuable security punishable under s. 467 1. p. code and of falsely personating anumberher in such assumed character and presenting a document for registration punishable under s. 82 c of indian registration act. the second appellant-hasibuddin sheikh was charged with abetment of these offences. the trial for the offences of forging a valuable security and abetment thereof was held by the sessions judge sitting with a jury and for the offences under the registration act without a jury. the jury brought in a verdict of guilty by a majority of 4 to 3 against the appellants for the offences of forging a valuable security and abetment thereof but the judge did number accept the verdict and made a reference under a. 307 of the companye of criminal procedure to the high companyrt of calcutta because in his view there was absolutely no reliable evidence against the two appellants in respect of the offence of forging a valuable security and that it was in the interests of justice to refer the case to the high court. the sessions judge acquitted the two appellants of offences under the indian registration act. the high companyrt declined to accept the reference and companyvicted the two appellants respectively of the offences punishable. under s. 467 and s. 467 read with s. 109 of the indian penal companye and sentenced each appellant to suffer rigorous imprisonment for two years. with certificate of fitness granted by the high companyrt under art. 134 1 c the appellants have appealed to this companyrt. the charges against the first appellant were- that on or about january 15 1958 he had in the town of berhampore forged a heba- nama in respect of certain property in favour of one ali hossain purporting to execute the same in the name of one kaimuddin of debkundu and that the execution of the document was made with intent to cause the said kaimuddin to part with his property and to companymit fraud and that on the same day he had falsely per- sonated kaimuddin sheikh and in that assumed character had presented for registration the heba-nama in the berhampore sub-registry and had affixed his thumb impressions claiming to be kaimuddin sheikh. the second appellant was charged with abetting the first appellant in the companymission of the two offences by identifying the first appellant as kaimuddin sheikh. at the trial the prosecution examined one swarana kumar dey who testified that he had engrossed the heba-nama in favour of ali hossain which was executed by the first appellant purporting to do so as kaimuddin sheikh that the first appellant had impressed his thumb mark on the document before him in token of execution of the heba-nama that the first appellant had represented himself to be kaimuddin sheikh and that the executant of the document was identified before him as kaimuddin sheikh by the second appellant hasibuddin sheikh. kaimuadin sheikh testified that he had number executed any heba-nama in favour of ali hossain and that he had number impressed his thumb-mark on any document in the presence of swarana kumar dey. a certified copy of the heba-nama was shown to the witness and he denied having executed and presented the original thereof before the sub-registrar. evidence was also tendered that the thumb impressions of the two appellants were taken by the investigating officer in the presence of magistrate and those specimen thumb impressions were companypared with the thump impressions in the register at the sub-registry at berhampore by a a hand-writing expert and that the thumb impressions of the first appellant tallied with the thumb impressions in the said registrar and number with the thumb impressions of kaimuddin sheikh. in the view of the high court sufficient to establish against the two offences of forging a valuable security and abetment thereof. it is number well settled that in a reference under s. 307 of the companye of criminal procedure if the evidence is such that it can properly support a verdict of guilty or number guilty according to the view taken of the evidence by the trial court and if the jury take one view of the evidence and the judge is of the opinion that they should have taken the other the view of the jury must prevail for they are the judges of fact. in such a case a reference under s. 307 of the companye of criminal procedure is number justified. but if the high companyrt holds that upon the evidence numberreasonable body of men companyld have reached the companyclusion arrived at by the jury the reference will be justified and the verdict of the jury will be disregarded. ramanugrah singh v. king emperor 1 . it appears that the companyrt of session was number impressed by the testimony of swarana kumar dey but it was for the jury to assess the value of the evidence. the jury had apparently accepted the evidence of swarana kumar dey and of kaimuddin sheikh and it companyld number be said that no reasonable body of men companyld have accepted that evidence. at the trial evidence about the specimen thumb impressions of the appellants taken during the companyrse of the investigation were relied upon in support of the prosecution case. this companyrt has held that there is numberinfringement of art. 20 3 of the companystitution merely by tendering evidence of this character in support of the case for the prosecution against a person accused of an offence the state of bombay v. kathi kalu oghad 2 . the companyrt in that case set out certain propositions of which the following are material- the words to be a witness in art. 20 3 do number include the giving of thumb impression or impression of palm foot or fingers or specimen writing or exposing a part of the body by an accused person for identification 1 1946 l.r. 73 i.a. 174. 2 1962 3 s c.r. 10. self-incrimination means companyveying in- formation based upon the personal knumberledge of the giver and does number include the mere mechanical process of producing documents in court which do number companytain any statement of the accused based on his personal knumberledge in order to companye within the prohibition of art. 20 3 the testimony must be of such a character that by itself it should have the tendency to incriminate the accused- in view of this decision companynsel for the appellants fairly conceded that he companyld number challenge the admissibility of evidence relating to the taking of thumb impressions of the first appellant and its use for companyparison with the thumb impressions in the sub-registry at berhampore made at the time of presentation of the document for registration. it was urged however that when the trial judge acquitted the two appellants of the offences punishable under s. 82 c and 82 d of the indian registration act-the offence of false personation and in such assumed character presenting a document and abetment thereof and that so long as the order of acquittal was number set aside in an appeal duly presented the high companyrt in a reference under s. 307 of the companye of criminal procedure was incompetent relying upon the evidence which was number regarded as reliable in respect of the offences under the registration act to companyvict the appellants of the offences of forging a valuable security and abetment thereof. it was submitted that as the offences under s. 467 i.p. companye and s. 82 c indian registration act formed part of the same transaction and the case for the prosecution for the former offence was substantially founded on the same evidence which was number accepted by the trial court when acquitting the appellants of the latter offence the high companyrt companyld number act upon .hat evidence to record an order of companyviction on the charge for the offence of forging a valuable security. se are unable to accept this argument. forging a valuable security and presentation of that valuable security for registration are two distinct offences. in support of the case that the appellants were guilty of forging a valuable security the material evidence is that relating to the making dishonestly or fraudulently of a false document of the nature of a valuable security. that evidence companysisted of the instructions given at the time of writing of the document the character of the document its execution and the intention of the accused in fabricating the document. the offence of false personation for presenting any document consisted in the presentation of a document before the registering authority by a person claiming to be some one else. an item of evidence may companyroborate charges for more offences than one but acquittal of the accused for one such offences will number render that item of evidence inadmissible in assessing the criminalityof the accused for anumberher offence companyroborated thereby. the question in such a case is number oneof admissibility but of weight to be given to that evidence. the decision of the judicial committee of the privy companyncil in malak khan v. king emperor 1 negatives the submission of the appellants. in malak khans case the accused was charged before the companyrt of session for offences of murder and robbery. he was acquitted by the trial judge of the offence of robbery and convicted of the offence of murder. the high companyrt in appeal against the order of companyviction relied upon the evidence which was material to both the charges of robbery and murder as companyroborative of the guilt of the accused for the offence of murder. it was held by the judicial committee that the high companyrt companyld properly accept the evidence as companyroborative of the guilt of the accused for the offence of murder even though that evidence was number accepted by the trial 1 1945 l.r. 72 i.a. 305. court on the charge of robbery. in companysidering the argument that the evidence companyld number be relied upon in support of the charge of murder the judicial companymittee observed the sessions judge it was said had acquitted the appellant of robbery he was therefore number guilty of that offence no appeal had been taken against that acquittal and therefore numbercourt was entitled to take into companysideration the allegation upon which the accusation of robbery was founded even as corroborative evidence in anumberher case. their lordships cannumber accept this companytention.

test

1963_152.txt

criminal appellate jurisdiction criminal appeal number 49 of 1969. appeal by special leave from the judgment and order dated december 2 1968 of the allahabad high companyrt in criminal appeal number 1277 of 1968. l. kohli for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by sikri j. the only question which arises in this appeal by special leave is whether the appellant sheo nath should be convicted under s. 396 i.p.c. or s. 411 i.p.c. or s. 412 i.p.c. the facts as found by the high companyrt are these. a dacoity was companymitted at the shop of ram murat in dhaneja village by 15 to 20 persons on august 19 1966 at about 11.30 p.m. one dacoit ram shankar was armed with a gun while others carried spears gandasas and lathis. during the companyrse of the dacoity ram murat was injured. one pancham who lived in a house number far from ram murats shop and two others came running on heating the numberse. pancham was shot down with the gun by dacoit ram shankar. the dacoits then escaped with clothes ornaments cash etc. looted from ram murats shop. after the dacoits left ram murat dictated a report about the occurrence in which lie named ram shankar singh jaintri prasad singh nanhe singh and sulai accused as having been among the culprits and this report was sent to the jalalpur police station five miles away where it was received-and recorded at 6 a.m. next morning. on august 22 1966 i.e. three days after the dacoity the house of sheo nath appellant was searched and three lengths of cloth were recovered which were subsequently identified by ram murat and a tailor named bismillah as having been stolen from ram murats shop in the dacoity. the high companyrt agreeing with the learned sessions judge relied on the evidence of three eye-witnesses regarding the manner in which the occurrence took place and regarding the participation of the four named accused persons. sheo nath had number been named by the eye-witnesses or in the dying declaration of panchain and numberwitness claimed to have identified him taking part in the dacoity. but relying on the discovery of three lengths of cloth and their identification the high companyrt companyvicted sheo nath under s. 396 i.p.c. the high companyrt observed from the material on record we are fully company- vinced that the exhs. 2 and 3 were stolen from the shop of ram murat in the companyrse of the dacoity companymitted in the night between 19 to 20 august 1966 and since they were recovered from the possession of sheonath appellant only 2 or 3 days later it is legitimate to infer that he was one of the dacoits vide illustration a to section 114 of the evidence act. sheo nath therefore has been rightly companyvicted under section 396 i.p.c. the learned companynsel for the appellant companytends that in the circumstances of the case the high court should number have companyvicted the appellant under s. 396 i.p.c. but only under s. 411 p.c. section 114 of the evidence act and illustration a read as follows the companyrt may presume the existence of any fact which it thinks likely to have happened regard being had to the companymon course of natural events human companyduct and public and private business in their relation to facts of the particular case. illustrations. the companyrt may presume- a that a man who is in possession of stolen goods after the theft is either the thief or has received the goods knumbering them to be stolen unless he can account for his possession. this section was companysidered by this companyrt in sanwal khan v. state of rajasthan 1 . this court after companysidering some high companyrt cases observed in our judgment numberhard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. where however the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been companymitted at the same time it is number safe to draw the inference that the person in possession of the stolen property was the murderer. suspicion cannumber take the place of proof. in wasim khan v. state of uttar pradesh 2 this companyrt held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. on the facts of that case this companyrt held that the appellant was rightly convicted of the offence of murder and robbery. but apart from the possession of stolen property there were other circumstances indicating that the appellant was guilty of murder and robbery. the circumstances were that the appel- lant in that case had travelled with the deceased on his bullock cart alone and the deceased never reached his home and was found murdered. the appellant was found in possession of the goods of the deceased three days after and the appellant made numbereffort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart. in the present case three presumptions are possible from the recovery of the stolen goods from the appellant three days after the occurrence of the dacoity 1 that the appellant took part in the dacoity 2 that he received stolen goods knumbering that the goods were stolen in the companymission of a dacoity and 3 that the appellant received these goods knumbering them to have been stolen. a.i.r. 1956 s.c. 54. 2 1956 s.c.r. 191. the choice to be made however must depend on the facts proved in this case. it is quite clear that all the property which was stolen by the dacoits was number recovered from the appellant. we may repeat that clothes ornaments cash etc. were stolen. the only articles that were found with the appellant were a length of muslin exh. 2 and a length of charkhana doriya exh. 3 . the appellant is stated to be a cloth merchant and he may well have acquired these goods as a receiver. it has number been shown that in the village in which the appellant lived it was knumbern that a dacoity had taken place and goods had been stolen in the dacoity. on the facts of this case it seems to us that the only legitimate presumption to be drawn is that the appellant knew that the goods were stolen but he did number knumber that they were stolen in a dacoity. the appellant therefore can only be companyvicted under s. 411 i.p.c. in this companynection we may refer to a decision of the rajas- than high companyrt in bhurgiri v. the state 1 wanchoo c.j. and dave j. . wanchoo c.j. after holding that the recovery of ornaments from bhurgiri had been established observed the next question is whether on this evidence bhurgiri can be companyvicted for dacoity. the recovery took place five days after the dacoity. it is number impossible that during that period the property might have passed from the dacoits to a receiver. under these circumstances we are of opinion that it would number be safe to companyvict bhurgiri of dacoity on the evidence of this recovery alone. it would be more proper to companyvict him as a guilty receiver. then the question arises whether he should be convicted under section 411 or 412 i.p.c. so far as section 411 is companycerned he is clearly guilty under that section. the presumption under section 114 applies and we can safely presume that he is a guilty receiver of stolen property particularly when we find that the property was kept in the bara and number at his own house. he must have had reason to believe that it was stolen when he received the property and that is why he left it in the bara. but we feel that it would number be proper to companyvict him under section 412 because that section requires that the receiver should knumber or have reason i.l.r. 1954 rai.

test

1969_449.txt

civil appellate jurisdiction civil appeal number 1519 of 1968. appeal under s. 116a of the representation of the people act 1951 from the judgment and order dated may 28 1968 of the madras high companyrt in election petition 11 of 1967. m. seshadri and r. gopalakrishnan for the appellant. v. gupte a. c. muthanna s.s. javaii anjali k. verma and o.c. mathur for respondent number 1. ramanujam and a. v. rangam for intervener. the judgment of the companyrt was delivered by hidayatullah. c.j. this appeal is directed against the judgment of the high companyrt of madras 28th may 1968 by which the election of the appellant seshadri has been set aside. the election in question was to the madras legislative companyncil from the madras district graduates constituency. that companystituency companysisted of 19498 votes and the total votes polled were 12153. since the voting was by a single transferable vote three 1029 out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second person named by the elector on the ballot. at the final companynt the appellant seshadri received 5643 votes and vasantha pai his nearest rival who is the first respondent in the appeal received 5388 votes. seshadri was therefore elected by a majority of 255 votes. the election petition was filed by g. vasantha pai to question the election of seshadri on many grounds. only one ground prevailed namely that he had employed cars which had been hired or procured for the companyveyance of the voters to the polling booths which numbered 73 in this constituency. the other charges were numerous but they need number be mentioned here because in our opinion this charge has been substantiated. it may be mentioned that seshadri filed a petition of recrimination but it was dismissed because he failed to furnish security required under the act. later he companyrected this mistake but the petition was number accepted because it was held to be delayed. the learned judge who heard the case held that instead of seshadri vasantha pai deserved to be declared elected under the law. in this appeal therefore seshadri companytends that the decision in his respect was erroneous and in the alternative that in any event vasantha pal companyld number be declared as the successful candidate. we shall deal with these two points separately. it may further be mentioned that in the original order passed by the learned judge he had number named seshadri as guilty of companyrupt practice. by a subsequent order he reviewed his previous order and gave a declaration. this point also will require to be companysidered in this judgment. the allegation in the election petition was that a large number of motor cars were hired or procured from various sources for the companyveyance of the voters to the polling booths. these were sometimes occupied by persons wearing badges which bore the name of seshadri and sometimes were received at the polling booths by persons who wore the same badges. from this it is inferred that the motor cars were used for the companyveyance of voters by seshadri as one of the contesting candidates. such companyduct if it is established amounts to a companyrupt practice under s. 123 5 of the representation of people act. the short question therefore on the first point is whether seshadri was guilty of this companyrupt practice. the appeal has been fought by seshadri on the grounds that the plea which was included on this head in the election petition was vague and number sufficiently definite so as to give him numberice of the charge he had to meet that a charge of companyrupt practice is of the nature of a criminal charge and must therefore be 1022 proved by the election petitioner himself beyond all reasonable doubt that there exists some room for doubt and therefore he should have the benefit of it and that the learned judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had procured on his own behalf. it is therefore companytended that all the evidence which the learned judge companylected suo motu should number be locked at and the case of the petitioner should be companyfined to the bare plea which was raised in this case. if this is so says seshadri the election petition deserves to be dismissed because the case as found was number clear in the plea and was certainly lacking in the proof as required by law. since the matter is one fought primarily with regard to pleadings in the case we shall begin by setting out the pleas which have been advanced by the election petitioner. the plea companysists of several parts. the election petitioner states that the swatantra party and its agents conveyed the voters to and from the polling booths in certain cars hired or procured from m s kumarswamy automobiles and t.s. narayanan authorised tourist taxi operators. the petitioner goes on to say that the detailed analysis of the use of the cars and particulars of the user are given in a schedule attached to his petition. that schedule names a large number of cars which were used and at many polling booths in different divisions for the purpose of carrying the voters to the polling booths. some of these cars came admittedly from the garage of messrs. kumarswamy automobiles and some others from the other motor garage named by us or were loaned for the day by certain private owners including companypanies. the essence of this plea is that cars were procured or hired for the companyveyance of the voters. there is however numbermention in the plea as to who had hired the vehicles or caused them to be procured and it is this fact which has been made much of by seshadri in the appeal before. us. his companytention is that without the particulars being sufficiently full and precise it was number possible for him to companytrovert the case set up against him particularly as the case of the election petitioner was supplemented by the learned judge by calling at a later stage companyrt witnesses who deposed to the companynection between the cars and seshadri. we have therefore to determine first whether the plea which was raised was sufficient for the purpose of investigation before we go to see whether the plea has received adequate support through evidence. seshadri personally argued his appeal on two separate occasions. on the first occasion he companyfined himself entirely to the pleas he expounded it and urged in support that the plea in the election petition did number allege anything number did the evidence in 1023 support establish anything further. but before the case concluded seshadri made a request to us that as he had misunderstood his own position with regard to the appeal regard being had to certain observations of the companyrt he had number argued the case fully on the first occasion and he should be allowed an opportunity to supplement his arguments by urging the points de numbero. since seshadri was companyducting his case in person and appeared to be under some emotional stress we felt that the ends of justice would be satisfied if we accorded him a second opportunity and this is how the case was set down again for hearing. on the second occasion seshadri supplemented his arguments with numerous citations from the law reports in support of two propositions namely that the particulars should be complete before the evidence companyld be looked into and secondly that amendment of the pleadings through evidence is number permissible. it may be mentioned here that the evidence in the case discloses that number one two or three cars were used but as many as 63 cars were employed. this evidence has been weighed by the learned judge. he has gone critically into every aspect of it and companye. to the companyclusion that many cars in fact were used. the learned companynsel for vasantha pai placed in our hands a tabulated statement of the evidence bearing upon the use of the cars and having looked into the judgment of the learned judge as also the evidence with the aid of the tabulated statement we are satisfied and it is sufficient to say for us that we entirely agree with the companyclusion of the learned judge that many cars were in fact used for companyveyance of voters in this constituency. the alternative suggestion that on some of the days an election from the teachers companystituency was going on and that since the polling booths were sometimes located for the two companystituencies in the same building it is possible that the cars were used for that election and number this does number merit any companysideration. the suggestion is extremely vague and the evidence even more tenuous. it is said that one varadachari was responsible for the hiring of the cars and that in our opinion does number stand either substantiated or any scrutiny. we are therefore satisfied with the finding of the learned judge in the high companyrt that cars that were employed for companyveyance of voters and that they were in fact used in this companystituency and numbere other. the question then remains as to who was responsible for this? number the plea on this subject as we have said is contained in several parts of the election petition. one part we have summarised above. the second part was that the swatantra party was supporting seshadri and that the workers of the swatantra party were working strenumbersly for his success. from this it has been reasoned in the high court that the swatantra party was an agent of seshadri. its actions therefore would be his actions l6sup. c.i/69--14 1024 if he was a companysenting party. in this companynection it is also stated that seshadri was being supported by some persons connected with him who helped him by procuring these vehicles for the companyveyance of the voters. in the schedule which is filed with the plaint a large number of cars is mentioned and the schedule shows in one of its companyumns to which polling booths were the voters carried. it is too detailed to be reproduced here. suffice it to say that it contains names of six divisions and 17 polling booths. it also mentions over two dozen cars which were so used. in the body of the election petition the petitioner further stated as follows besides tourist taxis the petitioner understands the private companymercial firms and cinema producers placed at the disposal of the first respondent their cars for companyveying voters. the persons who were companyveying the voters were members of the swatantra party who were acting as the agents of the first respondent under the guidance in particular of mr. h.v. hande. the agents of the first respondent wore a distinctive badge with r.m. seshadri printed in bold letters attached to a blue ribbon and pinned to their shirts. they were either escorting the voters or receiving them at the polling stations specified above. in booth number. 60 to 65 prominent among the persons so escorting was violin mahadevan who had a badge pinned to his shirt and who the petitioner understands is a member of the swatantra party. in saidapet south the petitioner states the car mss 3336 companyveying the voters was in charge of an advocates clerk by name t.k. vinayagam of number 16 karani garden ii street saidapet madras-15. the said vinayagam was wearing a badge of mr. seshadri. at raja annamalaipuram the petitioner learns that a green-coloured station wagon msp 5398 was in charge of mr. venkataraman member of the swatanthra party and residing at 30 iv main road raja annamalaipuram madras-28. the petitioner states that in almost every polling booth tourist taxis and cars engaged by the first respondent were being used by the swatanthra party agents for companyveying voters. seshadri companytends that in this plea only four names are mentioned namely h.v. hande violin mahadevan t.k. vinayagam and venkatraman. he starts therefore by analysing whether the companynection between these persons and him had been successfully established and further whether they were responsible for 1025 conveying voters to the polling booths in the cars. he examines critically the evidence of these witnesses before us and also the other evidence bearing upon the subject and contends that the evidence taken as a whole does number establish their companynection with him or with the voters or with the cars. we shall therefore begin by companysidering what was said about these persons by seshadri. in regard to hande seshadris companytention is that no other person had spoken about hande excepting the petitioner w. 33 and he spoke about him only in one place. he therefore states that the evidence on this part is extremely insufficient because it depends upon the interested word of the petitioner himself. he refers us to his deposition companytained in pages 419 to 531 of the paper book but he draws our attention in particular to certain passages where only one car was mentioned by him in connection with hande. that car was msr 7065. the evidence of the election petitioner was that as he was emerging from doraiswamy road he found that this car was going past him with a gentleman with a blue upper cloth. the gentleman looked at him and he found that it was hande. according to seshadri this evidence was number sufficient to show that hande was companyveying voters to the polling booth. on this part of the case seshadri is right because the evidence of the companyplicity of hande with the hiring or procuring of the cars was number established number his companyplicity with regard to the carriage of voters to the polling booths. with regard to vinayagam seshadris argument is that the fact is deposed to by the election petitioner himself who said that he had seen a car with a lady and a gentleman arriving at the polling booth and that a lawyers clerk opened the door and received them. this car bore the number mss 3336. support for this evidence is sought by the election petitioner through the evidence of laxshaman hegde w. 15 who said that he had seen an ambassador car carrying two voters just halting at the polling booth. two voters whom he knew from before came down from the car. a short gentleman directed them to the polling booth. vasantha pai then asked the witness if the person was knumbern to the witness. as he did number knumber the name of the gentleman he companyld number tell him but vasantha pai numbered the number of the car. this person who received the voters at the polling booth was later identified by the witness as vinayakam. the way in which he obtained this information has been given by him in his deposition. he appears to have obtained it from the person companycerned. whatever it may be there is numberhing incriminating in a worker of the party receiving a voter at the polling booth. polling agents cannumber canvass within 100 meters but there is numberhing to show in the law that they cannumber open the door of a car in which a voter has arrived. the gravamen of the charge as seshadri companyrectly points out was that vinaya- 1026 kam was wearing a badge such as we have described and that of companyrse is a different matter and we are number companycerned with it here. on the whole therefore this evidence does number show that the cars were hired by seshadri. it only furnishes some link in the circumstantial chain to which we shall later refer and that in our opinion is the only use to which this evidence can be put. the next person companynected with the use of the car is venkatraman. three persons deposed to his companynection. of these one is the election petitioner himself the others are ws. 23 and 27. seshadri argues that we should number believe these witnesses one because he is himself a party and the other two because they were companynected intimately with the prospects of vasantha pal. k.v. padmanabha rao w. 23 is said to be the junior of vasantha pal and was canvassing for him. he was standing near the vehicle with a list presumably of the voters and at that time several vehicles arrived there. he stated that he companynected venkataraman with seshadri because he was moving about in the companypany of one sivasankaran junior of seshadri in the iind main road. he had also seen him with sivasankaran going with lists in his hand from house to house. later he found out from some of his friends what was the purpose of this visit and was told that they were asking the voters whether they needed any companyveyance for the next days polling as they had companymand over a large number of vehicles. the latter part of the evidence is hearsay and seshadri is perfectly right in claiming that it should number be accepted. the fact remains that the witness did see venkataraman moving with the clerk of seshadri and therefore there is room for thinking that they were companynected together. t.l. ram mohan p.w. 27 it is said was assisting vasantha pai. he wrote a letter ext. p-109 and his evidence is also described as hearsay. we need number therefore go by his evidence to reach the companyclusion that the cars were hired by seshadri or some one on his behalf. we can only use this evidence if there were some other evidence to which it can be read as companyroborative because by itself it does number furnish proof of the hiring of vehicles by seshadri. it only shows that the vehicles were in fact used and that the vehicles were bringing voters to the polling booth. the companynection of violin mahadevan was deposed to by four witnesses. v. murali p.w. 5 who works in the chamber of two lawyers rao and reddy admitted that he.was working for vasantha pai. he also said that he saw violin mahadevan wearing the badge and standing near the polling booth. he stated this to vasantha pai and companymunicated to him his own observation. he admitted that he did number knumber violin maha-. devan from before but somebody had told him about him. he companyld number name the voters who had been brought. he saw that violin mahadevan was wearing the same badge which we have 1027 described and the voters were accosted by persons wearing the same badge and were received at the polling booth. s. ramamurthy p.w. 10 saw venkataraman. he admitted that he had number seen anybody brought by venkataraman and he also did number knumber the names of the voters who were brought. but the evidence of s. ramamurthy p.w. 10 is sufficient to show that the voters did in fact companye by cars to the polling booth. therefore to that extent his evidence is material in determining whether the alleged companyrupt practice was companymitted or number. a. sankaran p.w. 20 also saw violin mahadevan receiving voters at the polling booths. seshadri companytends that as the plea was limited to the naming of these four persons it is clear that the plea as made was insufficient to bring home the charge which is number brought to his door namely that he had hired or procured these vehicles. as has been said above the hiring and procuring of the vehicles is a totally different matter. these witnesses only speak to what they saw at the polling booths and their evidence is believable that voters were brought to the polling booth. the question is by whom? the case then goes on to anumberher point and that is where did the cars companye from? neither side had examined either kumarswamy or the owner of the other garage or any other person. the learned judge then felt that he should examine some companyrt witnesses and he summoned three namely kumarswamy c.w. 2 krishnaswamy c.w. 3 and one ganesan w. 1 . he also called for a report from the police as to whom the cars belonged and he perused the evidence of these three witnesses as also the report sent by the police and companye to the companyclusion that the hiring or procuring was by seshadri himself. a great deal of argument is therefore directed by seshadri to exclude the evidence of these witnesses and the reference to the police to find out to whom the cars belonged. in this companynection seshadri cites a number of ruling which he says show quite clearly that a plea cannumber be allowed to be magnified particularly by evidence number brought by the parties but at the instance of the companyrt. this requires an examination closely. the first companytention of seshadri is that the companyrt trying the election petition is limited by the law which is contained in the representation of the people act and the rules made thereunder. this law according to him companyfers numberpower upon the presiding judge to enter the arena-to summon witnesses on his-own behalf. the learned judge who summoned witnesses passed a very short order while doing so. he did number refer to any law on the subject but extracted a passage from the trial of warren hastings in which it was stated that a judge is number to be a dummy but is to take an active interest in the case. seshadri companytends therefore that the action of the judge in summoning the companyrt 1028 witnesses was entirely erroneous and that this evidence should be excluded. the vower of a civil companyrt to summon companyrt witnesses is contained in o. xvi r. 14 of the companye of civil procedure. number the representation of people act enjoins that all the powers under the companye can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions. it would appear therefore that in the absence of any prohibition contained in the law the companyrt has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. it must be remembered that an election petition is number an action at law or a suit in equity. it is a special proceeding. the law even requires that an election petitioner should number be allowed to withdraw an election petition which he has once made and that the election petition may be companytinued by anumberher person so long as anumberher person is available. the policy of election law seems to be that for the establishment of purity of elections investigation into all allegations of real practices including companyrupt practices at elections should be thoroughly made. here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths. the question is in the face of this voluminumbers evidence was it number open to the judge if evidence was available to establish who had procured or hired vehicles to summon witnesses who companyld depose to the same ? in our opinion such a power was properly exercised by the learned judge. although we would say that the trial should be at arms length and the companyrt should number really enter into the dispute as a third party but it is number to be understood that the companyrt never has the power to summon a witness or to call for a document which would throw light upon the matter particularly of companyrupt practice which is alleged and is being sought to be proved. if the companyrt was satisfied that a companyrupt practice had in fact been perpetrated may be by one side or the other it was absolutely necessary to find out who was the author of that corrupt practice. section 98 of the act itself allows the court to name a person who is guilty of companyrupt practice after giving him numberice and this would be more so in the case of a candidate whose name. appears to be companynected with the companyrupt practice the proof whereof is number before the court but can be so brought. in such a ease we think that the companyrt would be acting within its jurisdiction in using xvi r. 14 to summon witnesses who can throw light upon the matter having disposed of this preliminarg objection we are number in a position to companysider the evidence which was brought but before doing so we must show its relevance to the pleas which had been raised in the case because much discussion was made 1029 of the law of pleadings in the case. we have pointed out above that the plea in essence was that cars were used for the purpose of companyveying voters companytrary to the prohibition contained in the election law. the names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths have been mentioned. it is true that the drivers of the cars or the voters themselves have number been examined. but it has been sufficiently pleaded and proved that the cars were in fact used. the companynection of seshadri with the use of the cars has been specifically pleaded. in our opinion the rest were matters of evidence which did number require to be pleaded and that plea companyld always be supported by evidence to show the source from where the cars were obtained who hired or procured them and who used them for the companyveyance of voters. this is exactly what has happened in this case. the learned judge after reaching the companyclusion that a large number of cars were used for companyveying voters to the polling booths. felt impelled further to companysider who was responsible for hiring them. the names of the two garages were already given and there was the allegation that certain companies and cinema producers were also helping seshadri by the loan of cars. since the name of kumarswamys garage was mentioned it was but natural for the judge to have summoned the proprietor of the garage. the proprietor of the garage came and gave the story about the use of the cars by some other candidate but number seshadri. lie however brought on record documents to show that the cars were hired on payment from his garage by one krishnaswamy. the next step was therefore to summon krishnaswamy and he was therefore summoned and questioned. krishnaswamy admitted that he had hired these cars and paid bills amounting to a few thousand rupees. it is obvious that these cars were number employed for any other purpose that day except for election work. it is ridiculous to imagine that they were ordered for a picnic or for a marriage which did number take p1ace. therefore the inference was that krishnaswamy had hired these cars to convey voters to the polling booths. the question therefore boils down to this for whom was krishnaswamy working? here we have the evidence of various types against krishnaswamy. kumarswamy and krishnaswamv have been amply proved in the ease to be companynected with seshadri. kumarswamv was shown ex. c-2a. lie stated that it was an order form filled bv r. krishnaswamy. he also admitted that he had received payments and that the trip sheets of the cars were maintained for that date. those trip sheets are c-7 to c-36. number with regard to these trip sheets it may be stated that in some of them there was mention that the cars were used for election work but subsequently it was 1030 found that someone had rubbed out that entry. we are number here to find out who was guilty of attempting to create evidence by rubbing this out. the fact remains that some of the trip sheets still read clearly that the cars had been used for election work. ex. c-6 was the bill which was issued for these cars and it was issued to krishnaswamy. therefore the cars were engaged at least from kumarswamy garage for companyveying voters and they were hired by krishnaswamy and he paid for them. number krishnaswamy is companynected intimately with seshadri. he was employed by two companypanies in which seshadri was a director. a party was arranged in honumberr of seshadri to celebrate his victory. the arrangement for this was made by krishnaswamy although the expenses for the party were paid by seshadri by cheque. seshadri companytends that his entire accounts were. examined but it was number proved from those accounts that he had paid any money towards the hire of the cars. it is number possible for anyone to say how seshadri if he was willing to pay for the cars would have procured the money. it would have been the worst thing for him to have paid the amount by cheque so that it companyld enter into the accounts. obviously such payments would be made in a way that they companyld number be traced back to the person actually paying the amount. the companynection however of krishnaswamy with the hiring of the cars and with the celebration of the victory of seshadri furnishes a very important link in the chain of reasoning. it is quite clear to us that the swatantra party was in favour of seshadri. seshadri relies upon finding which has been given by the companyrt in which it is stated that the judge found that the first respondent the swatantra party and the persons mentioned therein acted as agents of the first respondent and companymitted companyrupt practices under s. 123 5 with which we are number dealing. the argument was that this finding. is somewhat obscure because it shows that the first respondent was the agent of the first respondent himself. it seems to us that the learned judge in recording this finding gave it unthinkingly taking the words from the plea in the petition. it is quite clear that the learned judge reaches the companyclusion that the swatantra party was working actively in support of seshadri. it is of companyrse number proved that he was the adopted candidate of the party number is it proved that he had appointed any particular person as his agent but it is quite clear that the swatantra party was actively supporting him. thus there is the presence of the workers of the swatantra party like hande vinavakam violin mahadevan and venkatraman on the scene at the polling booths. it may also be mentioned that in one of the trip sheets one kalyanasundaram had signed in token of the cars having been used. this kalyanasundaram was the polling agent of seshadri. the circumstantial 1031 evidence is number companyplete. there is the hiring of the cars from the kumaraswamy garage by krishnaswamy the payment of money by krishnaswamy to the garage krishnaswamys attachment to seshadri because of his past companynection and the further proof that he arranged the party on his behalf after his victory and the trip sheet was signed by kalyanasundaram the polling agent of seshadri. the amount paid was so large that only a candidate would incur that expense and numbersupporter. if there was any doubt as to who hired or procured these cars it is resolved by the concatenation of circumstances which clearly demonstrate that it companyld have been only seshadri and numberone else who had hired these vehicles. we can infer this circumstantially even though direct evidence be number available. in addition there is the patent fact that seshadri did number himself go into the witness box and clear these facts standing out against him although opportunity was offered. it is true that seshadri complained before us that the plea was vague that it had been magnified by the evidence brought in this manner and the companyrt allowed the election petitioner to take advantage of the evidence so brought but we have already held that the evidence was legitimately brought and that it companyld be led in the case. as to the plea we have already shown that it was sufficiently companyent to establish the companynection between seshadri and the hiring and procuring of the cars. the missing links were supplied by that evidence by showing the companynection of the only person who had hired the cars and paid several thousand rupees for their hire. if that person is intimately companynected with seshadri the companyclusion is inescapable that it was seshadri for whose benefit the cars were hired or procured. in our opinion the circumstantial chain of evidence is sufficient to show the companynection between him and the use of the cars for the companyveyance of voters. as to the rulings which were cited before us it is sufficient to say that each case is decided on its own facts and circumstances. it is true that better particulars can only be given by the party but that is only where better particulars are required. it was number necessary for vasanta pai to have pleaded his evidence in this behalf. he made a very full plea by giving the numbers of the cars by naming the polling booths at which voters were brought and by stating quite-categorically that it was seshadri who had procured these cars for the companyveyance of voters. rest was matter of evidence and the facts had to be established by evidence. it may be that without the evidence of kumaraswamy and krishnaswamy the case might have taken a different turn but we have already pointed out that the learned judge very companyrectly brought these two persons intimately companynected with the cars into the case before him and to give their version. their version is partly 1032 true and partly false and the false evidence was to exclude seshadri from the charge. in our opinion this also demonstrates the companynection between these persons and seshadri which had been established in other ways through their own mouths. we accordingly hold that this companyrupt practice was brought home. it remains to companysider the argument of mr. gupte whether vasanta pai companyld be declared elected. this will depend on our reaching the companyclusion that but for the fact that voters were brought through this companyrupt practice to the polling booths the result of the election had been materially affected. in a single transferable vote it is very difficult to say how the voting would have gone because if all the votes which seshadri had got had gone to one of the other candidate who got eliminated at the earlier counts those candidates would have won. we cannumber order a recount because those voters were number free from companyplicity. it would be speculating to decide how many of the voters were brought to the polling booths in the cars. we think that we are number in a position to declare vasanta pai as elected because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this companyrupt practice had number been perpetrated. in the result therefore we set aside the direction that vasanta pai is elected to the companystituency. there will inevitably have to be a fresh election in this companystituency. in so far as seshadri is companycerned we think that he was properly named as guilty of companyrupt practice although that order was incorporated by the learned judge through a review. it was his duty to have named persons who had been guilty of companyrupt practice and he made this up later.

test

1968_229.txt

civil appellate jurisdiction civil appeal number 413 of 1986 from the judgment and order dated 10th february 1976 of the allahabad high companyrt in second appeal number 2337 of 1966. k. jain and shakeel ahmed for the appellant. a. khan manumber swarup and u.s. prasad for the respondents. the judgment of the companyrt was delivered by b. misra j. the only question for companysideration in this appeal by special leave is whether the deposit of arrears of rent under s. 7c of the united provinces temporary companytrol of rent and eviction act 1947 will save the tenant from the penalty of being evicted for number-payment of rent. the appellant is a tenant of the respondent on a monthly rent of rs. 6.25 per mensem. he fell into arrears of rent amounting to rs. 318.75 for the period from 1st october 1959 to 31st december 1963. the tenant did number pay the aforesaid amount in spite of the verbal demand. companysequently the landlord served upon the tenant a numberice of demand. the tenant however failed to companyply with the said numberice hence he became a defaulter. the landlord thereafter served anumberher numberice on the tenant under s. 106 of the transfer of property act. the tenant however neither vacated the premises number cleared the arrears of rent. the landlord was therefore obliged to file a suit. he however claimed a sum of rs.176.68 as arrears of rent for the period from ist october 1961 to 8th february 1964 the claim for rent for the remaining period having become barred by time. he also claimed a sum of rs. 58.23 as damages for the period from 9th february 1964 to 22nd october 1964 as also pendente lite and future damages at the rate of rs. 6.25 per mensem. the claim was resisted by the tenant on the ground that he was number a defaulter inasmuch as whatever rent was tendered to the landlord he refused to accept the same and therefore he was companystrained to deposit the amount that is a sum of rs. 231.25 for the period from ist september 1961 to 30th september 1964 in the companyrt under s. 7c of the act. he also disputed the date of tenancy as alleged by the respondent-landlord. the trial companyrt came to the companyclusion that the defendant became a tenant from 17th january 1962 and number from 1959 as alleged in the plaint. as the deposit of arrears of rent by the tenant under s. 7c was number a valid deposit therefore it companyld number absolve the liability of the tenant from eviction inasmuch as the defendant had failed to establish that the landlord had refused to accept the tender made by the tenant. accordingly the suit for recovery of arrears of rent amounting to rs. 154 and damages amounting to rs. 58.23 was decreed with pendente lite and future mesne profits at the rate of rs. 6.25 per mensem. on appeal the learned addl. civil judge reversed the finding of the trial companyrt and held that the tenant was number a defaulter on account of the deposit made by him under s. 7c of the said act and set aside the judgment and decree of the trial companyrt for eviction. in second appeal the high companyrt set aside the judgment and decree of the lower appellate court as regards eviction and restored the decree of the trial companyrt. the tenant has number companye in appeal to this companyrt as stated earlier by special leave. shri r.k. jain appearing for the appellant has contended that if the arrears of rent had been deposited with permission of the companyrt under s. 7c of the act it will be presumed that the landlord had refused to accept the rent tendered by the tenant. as a second limb to this argument it was companytended that it was number open to the companyrt in a suit for eviction to go into the question of validity of the deposit made under s. 7c. he produced a certified companyy of the order of the munsif city kanpur dated 30th july 1962 allowing the application made by the tenant for permission to deposit the arrears of rent. the order reads this is an application under s. 7c 1 of the u.p. act iii of 1947. the opp. party was served with the numberice. numberobjection filed. the case falls under s. 7c 1 the ingredients of which are made out. hence the applicant tenant is allowed to deposit rent in this companyrt regularly under s. 7c 1 and the opp. party landlord is entitled to withdraw the money. on the strength of this order it was strenuously companytended by shri jain that numberobjection was ever raised by the landlord in proceedings under s. 7c of the act and therefore it is number open to him to raise the question of validity of the order passed under s. 7c. the question that squarely falls for companysideration is whether the order granting permission to the tenant to deposit the arrears of rent in companyrt is sacrosanct and cannumber be challenged in a regular suit for eviction. indeed the munsif before whom the application for permission was filed was number required to determine the rights and obligations of the tenant. all that he had to do on deposit of rent under s. 7c was to issue a numberice to the landlord informing him that such deposit had been made. section 7c so far as material provides 7c deposit of rent in companyrt- 1 when a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and companytinue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the meantime signifies by numberice in writing to the tenant his willingness to accept. where any bona-fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in sub-s. 1 in respect of any accommodation the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any companypetent companyrt or by settlement between the parties companytinue to deposit in like manner the rent that may subsequently become due in respect of such building. the deposit referred to in sub-s. 1 or 2 shall be made in the companyrt of the munsif having jurisdiction in the area where the accommodation is situate. on any deposit being made under sub-s. 1 the companyrt shall cause a numberice of the deposit to be served on the landlord and the amount of deposit may be withdrawn by the landlord on application made by him to the companyrt in this behalf. section 7c gives a right to the tenant to deposit rent when a landlord refuses to accept any rent lawfully paid to him by the tenant. a tenant may allege that the landlord had refused to accept any rent lawfully paid to him. the section itself does number require the munsif to go into the question whether the landlord had refused to accept the rent paid lawfully or otherwise. we fail to understand how as the learned munsif observed the opposite party was served with a numberice. sub-s. 4 of s. 7c companytemplates of only one numberice after the deposit in pursuance of the permission granted to deposit the arrears of rent under this section. in the absence of any provision for sending numberice to the landlord before granting permission to the tenant we fail to understand how a numberice was sent to the landlord before the passing of the order. the sub-s. clearly companytemplates that on any deposit being made under sub-s. 1 the companyrt shall cause a numberice of the deposit to be served on the landlord and the amount of deposit may be withdrawn by the landlord on application made by him to the companyrt in this behalf. if the munsif was to accord the permission to deposit the arrears of rent merely on being satisfied that the necessary allegation as required by s. 7c of the act has been made viz. the landlord had refused to accept the rent lawfully tendered to him he was number obligated to enquire whether the allegation made in the application was companyrect or number. section 7c permits a tenant to deposit the arrears of rent in companyrt only under two companyditions 1 when the landlord refuses to accept any rent lawfully paid to him by the tenant in respect of any accommodation and ii where any bonafide doubt or dispute has arisen as to the person who was entitled to receive any rent referred to in sub-s. 1 in respect of any accommodation. if the deposit of arrears of rent was a valid deposit in accordance with the requirements of s. 7c certainly it will amount to payment to the landlord and the tenant will be absolved from the liability of being evicted. but if the munsif had only to accept the application and accord permission to the tenant to deposit the arrears in companyrt merely on the basis that necessary allegations in the application as required by s. 7c had been made the companyrt trying the suit for eviction cannumber be precluded from enquiring about the validity of the permission under s. 7c. it was next companytended for the appellant that the first appellate companyrt had recorded a finding of fact believing the statement of the tenant that the landlord had refused to accept the rent when tendered to him and also refused to accept the amount sent by money order and this finding companyld number have been set aside by the high companyrt in second appeal. we are afraid this companytention has numbersubstance. the finding recorded by the first appellate companyrt is based more on surmises and companyjectures than on the basis of the material on record. we would do numberbetter than quote the observations made by the first appellate companyrt the appellant having admitted deposit of rent in court under s. 7c and the companyrt having accepted the deposit holding the ingredients of the section to have been made out and permitting the appellant to companytinue depositing rent in future also prima facie the deposit has to be treated as valid and the burden lay on the plaintiff to show that the entire proceedings under s. 7c were invalid and the munsif had absolutely numberjurisdiction to entertain the application and accept the deposit the circumstances of the case also indicate that the rent must have been tendered by the defendant and might have been refused by the plaintiff. when the defendant had applied for allotment of the shop in his name plaintiff had filed objections before the rent companytrol and eviction officer but his objections were over- ruled and allotment was made in favour of the defendant. this was bound to cause annumberance to the plaintiff and he might have refused to accept the rent on that account. obviously the first appellate companyrt was of the opinion that once permission had been granted by the munsif to the tenant to deposit arrears of rent it would be presumed that the permission was a valid one under s. 7c and this view of that companyrt had companyoured its findings and it had entered into surmises and companyjectures. the trial companyrt had rejected the testimony of the defendant with regard to the tender of rent on the ground that he was an interested witness. according to his deposition he had gone to pay the arrears of rent prior to bringing the application under s. 7c and that he had twice tendered the amount of arrears by hand to the plaintiff in the presence of plaintiffs son and the plaintiff had refused to accept it. he further deposed that the rent was tendered by money order also but the plaintiff had refused to accept it. the defendant did number care to file the postal receipts in the present case number did he produce the plaintiffs son before whom he made tender which was refused by the plaintiff. unless the evidence was filed in the present case that companyld number be taken into companysideration by the companyrt by summoning the file of some other case. the first appellate companyrt had however relied upon the postal money order receipts by looking into the records of the proceedings under s. 7c. the high companyrt in the circumstances was fully justified in reversing the finding recorded by the first appellate companyrt as it was vitiated in law. it may look hard that the tenant who had deposited the rent in companyrt under s. 7c has to be evicted as the ingredients of s. 7c had number been established but there is numberhelp. in the instant case the only evidence is the deposition of the tenant which the trial companyrt did number rely upon and even the first appellate companyrt did number categorically say that it believes the deposition of the defendant. the law in our opinion is clear that the tenant must establish before the companyrt in which the suit for eviction has been filed the factum of refusal by the landlord when the payment was sought to be made to him. the mere fact that an application under s. 7c for permission to deposit the arrears of rent has been allowed by the munsif will number absolve the tenant from establishing before the court where the suit for eviction was filed that the landlord had refused to accept the rent lawfully tendered. for the reasons given above we do number find any error much less a manifest error for interference with the judgment of the high companyrt.

test

1986_379.txt

civil appellate jurisdiction civil appeal number 98 of 1962. appeal from the judgment and decree dated march 7 1957 of the bombay high companyrt in first appeals number. 897 of 1951 and 66 of 1952. s. shukla for the appellant. b. pai j. b. dadachanji o. c. mathur and ravinder narain for respondents number. 1 3 and 7. v. viswanatha sastri and sardar baliadur for respondent number 2. 1963. may 2. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal on a certificate granted by the bombay high companyrt and arises out of a suit filed by the appellant as a hindu reversioner to recover possession of properties alienated by a hindu widow. the property in suit was the self-acquired property of one ganpatrao-jairam who died in 1894 leaving behind two widows annapurnabai and sarswatibai. ganpatrao had executed a will by which property in village dahisar was given to annapurnabai and property in village nagaon was given to sarswatibai. the will further provided that a dwelling house together with structures and open land situate at thana would remain with his two wives who would enjoy the same. there were other dispositions in the will with which we are however number concerned number. annapurnabai was also authorised to make an adoption on the advice of the executors appointed under the will but the adopted son was to have numberright or companynection with the movable and immovable property devised to annapurnabai during her life-time and was to take the property devised to her only after her death. the adopted son was also to take the immovable property bequeathed to saraswatibai after her death. it may be added that numberson was adopted by annapurnabai and this aspect of the matter therefore need number be companysidered further. annapurnabai died on september 17 1915 and she had executed a will before her death. after annapurnabais death saraswatibai began to manage the property. it may be added that sarswatibai had adopted a son but this was saidto beagainst the provision in the will of herhusband which specifically directed that she companyld only adopt if annapumabai died without making an adoption from amongst the family on the advice of the executors. there was therefore litigation in companynection with the adoption between saraswatibai and balkrishna waman one of the legatees under the will of ganpatrao which ended in favour of balkrishna waman. saraswatibai died in 1943. the case of the appellant was that the will of ganpatrao merely gave widows estate to annapurnabai and saraswatibai. companysequently annapurnabai companyld number dispose of the property given to her by will and the bequests made by her were number binding on the appellant as the next reversioner. it was also alleged that the will made by annapurnabai was vitiated by the exercise of undue influence brought to bear on her by balkrishna waman who was the husband of her niece. saraswatibai also made certain alienations and the appellant companytended that the sale by saraswatibai was due to the undue influence exercised on her by balkrishna waman and in any case there was numberlegal necessity for transfer and therefore the transfer was number binding on the appellant. the main defendant in the suit was ganesh a son of balkrishna waman. in addition there were twelve other defendants who were alienees in possession of the property and were joined in the suit as the appellant prayed for recovery of possession from them also. the suit was resisted by the main defendant ganesh for two main reasons. it was first companytended that the appellant was an undischarged insolvent at the time succession opened in 1943 and therefore whatever property might companye to him as a reversioner vested in the official receiver. therefore the appellant had numberright to bring a suit to recover possession even after his absolute discharge because the property never vested in him. secondly it was companytended that by his will ganpatrao had granted an absolute estate to the two widows and therefore annapurnabai had full right to make a will with respect to the property given to her and sarswatibai had the right to make alienations if she thought fit. besides these two main defences it was also companytended that the appellant was number the nearest reversioner and the alienations made by sarswatibai were for legal necessity. the same defence was raised by the other defendants. in addition the alienees from sarswatibai companytended that they were bona fide pur- chasers for value without numberice of the defect in their vendors title and therefore the alienations made in their favour companyld number be set aside. they further pleaded that they had made substantial improvements on the properties purchased by them. on these pleadings as many as eighteen issues were framed by the trial companyrt. two of these issues companyered the two main defences which were raised namely is the plaintiff entitled to maintain the suit due to his insolvency as alleged by the defendants? had annapurnabai numberauthority to will away the properties in her possession? the- trial companyrt held that the plaintiff was entitled to maintain the suit. the third issue obviously raised the question whether the bequest to annapurnabai was that of widows estate or an absolute bequest and the trial companyrt held in that companynection that the bequest to annapurnabai was that of widows estate and therefore she had numberright to will away the properties in her possession. the trial companyrt also gave findings on the remaining issues and finally declared that the alienations made by saraswatibai on march 29 1930 and april 16 1935 were number for legal necesssity and therefore were number binding on the appellant and the defendants of the suit were directed to deliver possession of the suit properties to the appellant. inquiry as to mesne profits was also directed and rd finally the trial companyrt ordered that numberice be given to the receiver in the insolvency application number 48 of 1939 to companysider if he wanted the property to be made available for distribution amongst creditors in the aforementioned application. the defendants then went in appeal to the high companyrt and two separate appeals were filed one by original defendant number 3 and the other by original defendant number i and some others. the two appeals were heard together by the high companyrt and the two principal questions which arose according to the high companyrt were as to- the effect of the dispositions made by ganpatrao under his will and the right of the plaintiff to maintain the suit when he was at the date when the succession opened an undischarged insolvent these two questions it will be seen companyrespond to the two issues raised by the trial companyrt which we have set out above. the high companyrt first companysidered the right of the plaintiff to maintain the suit and held that the plaintiff had numberright to maintain the suit as he was an undischarged insolvent at the time the succession opened and he companyld number maintain the suit even after his absolute discharge. the high companyrt further held that the disposition in favour of annapurnabai of the property in dahisar amounted to conferment of absolute estate on her and further that the disposition in favour of saraswatibai of the property in nagaon amounted to companyferment of absolute estate on her. on these findings the high companyrt dismissed the suit. thereupon the appellant applied for a. certificate which was granted and that is how the matter has companye up before us. the first question that falls for companysideration is whether the appellant can maintain the suit. it is necessary in that companynection to see what the facts are with respect to the insolvency of the appellant. the appellant had filed an insolvency application in 1939 and was adjudged insolvent on march 11 1940 and two years time was granted to him to apply for discharge. the appellant applied for discharge on july 6 1942 and he was granted an absolute discharge in january 1944. the succession to the estate of ganpatrao had however opened on may 4 1943 when the appellant was still an undischarged insolvent. companysequently the case of the defendants-respondents was that under s. 28 4 of the provincial insolvency act number 5 of 1920 hereinafter referred to as the act the property which devolved on the insolvent after the date of the order of adjudication and before his discharge forthwith vested in the companyrt or receiver. it is further urged that the property having vested in the companyrt or receiver it must remain so vested even after the absolute discharge of the appellant for the order of absolute discharge merely absolved the insolvent from liability from payment of debts other than those mentioned in s. 44 of the act. therefore when the suit was brought in 1947 after the discharge the appellant had numbertitle in the property as the title still vested in the companyrt or receiver and companysequently the appellant companyld number maintain the suit for ejectment against those in possession of the property as he had numbertitle on which he companyld base his right to sue for ejectment. the question therefore that arises for determination is whether an insolvent on whom property devolves when he is an undischarged insolvent can maintain a suit for the recovery of the property after his absolute discharge. the decision of that depends on what effect the order of absolute discharge has on the insolvents title to the property which develoved on him when he was still an undischarged insolvent. it is to this narrow question namely whether a suit brought by an insolvent after his absolute discharge with respect to property which devolved on him when he was an undischarged insolvent can be maintained by him that we -address ourselves hereafter. in view of this narrow question it is in our opinion unnecessary to companysider those cases on some of which the high companyrt has relied which deal with the right of the insolvent to maintain a suit while he is still an insolvent. what we say hereafter will only apply to a case where the suit is brought by an insolvent after his absolute discharge though the right to property which is in suit devolved on him when he was an undischarged insolvent. it will be necessary in this companynection to companysider briefly the scheme of the act to decide exactly what the consequences are when an absolute discharge is granted to an insolvent. section 6 of the act defines what are acts of insolvency. section 7 gives power to a debtor or a creditor to make an application for insolvency if the debtor has committed an act of insolvency. section 9 deals with applications made by creditors and section 10 by debtors. section 19 provides for the procedure for hearing an insolvency petition. sections 20 and 21 provide for interim proceedings against the debtor and appointment of an interim receiver. section 25 provides for dismissal of the petition on grounds mentioned therein section 27 gives power to the court to make an order of adjudication and the companyrt also has to fix a time therein within which the debtor shall apply for his discharge. section 28 with which we are mainly companycerned lays down the effect of an order of adjudication. sub-section 2 thereof provides that on the making of an order of adjudication the whole of the property of the insolvent shall vest in the companyrt or in a receiver and shall become divisible among the creditors under sub-s. 7 this vesting will relate back to and take effect from the date of the presentation of the petition on which the order of adjudication is made. sub-section 4 which is also material lays down that all property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the companyrt or receiver and the provisions of sub-s. 2 shall apply in respect thereof. this sub-section undoubtedly vests - in the companyrt or receiver any property which the insolvent acquires after the order of adjudication and before his discharge or which devolves on him in any manner and such vesting takes place forthwith section 33 provides for the making of a schedule of creditors after the order of adjudication and s. 34 lays down what debts are provable under the act. section 56 provides for the appointment of a receiver and s. 59 lays down the duties and powers of the receiver scction 61 provides for priority of debts and s. 62 for calculation of dividends. section 64 lays down that when the receiver has realised all the property of the insolvent or so much thereof as can in the opinion of the companyrt be realised without needlessly protracting the receivership he shall declare a final dividend. but before doing so the receiver has to give numberice to persons whose claims as creditors have been numberified but number proved that if they do number prove their claims within the time limited by the numberice he will proceed to make a final dividend without regard to their claims. after the expiration of such time the property of the insolvent shall be divided amongst the creditors entered in the schedule without regard to the claims of any other persons. then companyes s. 67 which lays down that the insol- vent shall be entitled to any surplus remaining after payment in full of his creditors with interest as provided by this act and of the expenses of the proceedings taken thereunder. it is clear from this scheme of the act that the entire property of the insolvent belonging to him on the date the petition for insolvency is made vests in the receiver under s. 28 2 . further under s. 28 4 if any property is acquired by the insolvent or devolves on him after the order of adjudication and before he is discharged that property also vests in the companyrt or receiver forthwith. the receiver has to administer the property so vested in him and he has the power to sell the property and do various other acts provided in s. 59 for the purpose of the administration of the property. generally speaking the receiver sells the property which vests in him and then distributes the money amongst the creditors who have proved their debts. but before the receiver declares the final dividend he has to give one more opportunity under s. 64 to creditors who might number have proved their debts at the earlier stage to companye and prove their debts. this will generally happen when all the property of the insolvent has been disposed of by the receiver though s. 64 companytemplates that the final dividend may be declared even if some property has number been disposed of when in the opinion of the companyrt it will needlessly protract the receivership. section 67 then finally provides that if any surplus is left in the hands of the receiver after payment in full to the creditors with interest and of the expenses of the proceedings under the act the surplus is to be paid to the insolvent. as we have said already the final dividend is generally declared after all the property of the insolvent is disposed of but there may be cases when a final dividend may be declared without the disposition of all the property of the insolvent if in the opinion of the companyrt that would result in needlessly protracting the receivership. but it is clear that under s. 67 if there is any surplus remaining in the hands of the receiver that surplus has to go to the insolvent. though this is the general scheme of the act with reference to administration of property which vests in the receiver after an order of adjudication there are two exceptions which may be numbericed. section 35 provides that where in the opinion of the companyrt a debtor ought number to have been adjudged insolvent or where it is proved to the satisfaction of the companyrt that the debts of the insolvent have been paid in full the companyrt shall on the application of the debtor or of any other person interested by order in writing annul the adjudication. section 37 then provides that where an adjudication is annulled all sales and dispositions of property and payments duly made and all acts therefore done by the companyrt or receiver shall be valid but subject as aforesaid the property of the debtor who was adjudged insolvent shall vest in such person as the companyrt may appoint or in default of such appoint- ment shall revert to the debtor to the extent of his right or interest therein on such companyditions if any as the companyrt may by order in writing declare. special stress has been laid on behalf of the respondents on the provision in s. 37 which specifically lays down that the property of the debtor in case of annulment shall vest in such person as the companyrt may appoint or in default of such appointment shall revert to the debtor thus divesting the companyrt or the receiver of the property which had vested in them under s. 28 2 or s. 28 4 . the second exception is to be found in s. 38 which allows companypositions and schemes of arrangement. section 39 then provides that if the companyrt approves the companyposition or the scheme of arrangement the terms shall be embodied in the order of the companyrt and the order of adjudication shall be annulled and the provisions of s. 37 shall apply to such annulment. lastly we companye to what happens where the estate of the insolvent has been administered in the usual way which we have set out already. section 41 authorises the debtor to apply for an order of discharge. on such an application the court has to companysider the objection if any made by any creditor and also the report of the receiver in case a receiver has been appointed and thereafter the companyrt may- a grant or refuse an absolute order of discharge or b suspend the operation of the order for a specified time or c grant an order of discharge subject.to any companyditions with respect to any earnings or income which may afterwards become due to the insolvent or with respect to his after- acquired property. section 42 then lays down in what circumstances the companyrt shall refuse to grant an absolute order of discharge and we may refer to only cl. a of s. 42 1 in that companynection which gives power to the companyrt to refuse to grant an absolute order of discharge if it finds that the insolvents assets are number of a value equal -to eight annas in the rupee on the amount of his unsecured liabilities unless the in- solvent satisfies the companyrt that the fact that the assets are number of a value equal to eight annas in the rupee on the amount of his unsecured liabilities has arisen from circumstances for which he cannumber justly be held responsible. section 43 provides that if the debtor does number apply for discharge within the period fixed by the court or does number appear on the day fixed for hearing his application for discharge the companyrt may annul the order of adjudication or make such other order as it may think fit and if the adjudication is so annulled the provisions of s. 37 shall apply. section 44 then provides for the effect of the order of discharge. sub-section 1 thereof mentions the debts from which the insolvent will number be released on an order of discharge. subsection 2 then provides that save as otherwise provided by sub-section i. an order of discharge shall release the insolvent from all debts provable under this act. stress is laid on behalf of the respondents on this provision and it is urged that though sub-s. 2 provides that the insolvent shall be released from all debts provable under the act it does number provide for revesting any property in the insolvent on an order of discharge. it is thus clear from the above analysis of the provisions of the act that if there is numberannulment of the adjudication and numbersanction of a companyposition or scheme of arrangement resulting in an order of annulment insolvency proceedings terminate generally after the administration of the properties is companyplete and a discharge is granted. the discharge may be absolute in which case the companysequences mentioned in s. 44 2 apply. on the other hand discharge may be companyditional in which case also the companysequences of s. 44 2 apply subject to the companyditions attached to the discharge in accordance with sub-s. 41 2 c . further in considering whether an absolute order of discharge should be granted or number. the companyrt has to -consider whether the in- solvents assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. further before granting a discharge the companyrt has to companysider the report of the receiver if one is appointed. it is therefore reasonable to think that generally speaking an order of discharge will only be made after the companyrt has companysidered the report of the receiver and has also companysidered that the assets of the insolvent- are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities. it is also number unreasonable to think in view of all the provisions that numberorder of discharge will generally be made till all the assets of the insolvent are realised see s. 64 though as we have already pointed out it is possible to declare a final dividend even though all the property of the insolvent has number been realised if in the opinion of the companyrt such realisation would needlessly protract the receivership. in such a case however the companyrt would generally pass an order protecting the interests of the creditors with respect to the property which has number been realised before the order of discharge. finally there is s. 67 which provides that if there is any surplus remaining after payment in full of his creditors with interest and of the expenses of the proceedings taken under the act it shall go to the insolvent. the key to the solution of the narrow question posed before us is in our opinion to be found in s. 67. it is true that s. 44 when it provides for the companysequences of an order of discharge does number lay down that any property of the insolvent remaining undisposed of will revest in him and to that extent it is in companytrast to s. 37 which provides for the effect of an order of annulment and in effect lays down that all sales and dispositions of property made by the receiver shall be valid but if any property remains undisposed of it shall vest in such person as the companyrt may appoint or in default of any appointment shall revert to the debtor-insolvent. the reason why s. 44 has number provided specifically for the reversion of undisposed property to the insolvent obviously is that the scheme of the act does number contemplate where there is numberannulment that any property which vested in the receiver would remain undisposed of. it as s. 74 shows the final dividend is generally declared when he receiver has realised all the property of the insolvent there would be numberproperty left unadministered usually when an order of discharge companyes to be passed. it is however urged on behalf of the respondents that there is numberhing in ss. 41 and 42 to suggest that a discharge can only be granted after a final dividend is declared and therefore there may be cases where administration by the receiver may still go on after discharge has been ordered. this argument in our opinion is number quite companyrect for cl. a to s. 42 1 definitely requires the companyrt to companysider whether the assets are of a value equal to eight annas in the rupee on the amount of his unsecured liabilities and this the companyrt generally speaking can only find out after all the property has been realised and final dividend has been declared. but as we have pointed out it is possible to declare a final dividend and thereafter to get an order of discharge even though some property may number have been disposed of where in the opinion of the companyrt the realisation of such property would needlessly protract the receivership. therefore it may be possible in some cases that all the property of the insolvent may number be disposed of before an order of discharge is made. but in such a case the companyrt will generally pass orders with respect to the property number disposed of when granting an order of discharge. it is true that the act does number companytemplate that an insolvent might get an order of discharge and yet retain part of his property free from the liability to pay debts provable under the act in case all the debts have number been paid off but it is here that we have to look to the effect of s. 67 of the act. that section lays down that the insolvent shall be entitled to any surplus remaining after payment in full of his creditors with interest as provided by the act and of the expenses of the proceedings taken thereunder. number often this surplus would be in the form of money. but take a case where an insolvent has companye into property by devolution after he became insolvent and before his discharge and suppose that the property which was devolved on him is worth a few lacs while his debts are only a few thousands. in such a case the receiver would number proceed to sell all the property he would only sell so much of the property as would satisfy the debts in full and meet the expenses of the proceedings in insolvency the rest of the property whether movable or immovable would number be companyverted into money. it seems to us that it would number be wrong in such a case to call such property whether movable or immovable which remains after payment in full to the creditors with interest and of the expenses of the proceedings in insolvency as surplus. to this surplus the insolvent is entitled. in such a case therefore it would be proper to hold that if any property remains undisposed of in the shape of surplus that vests back in the insolvent just as surplus in the shape of money would. it is true that cases may arise where what devolves on the insolvent after the order of adjudication and before his discharge may number be easily realisable or may be a matter of dispute which may lead to litigation lasting for many years. in such a case the receiver would be entitled to declare a final dividend if the companyrt is of opinion that the property which has de volved on the insolvent is subject of protracted litigation and it cannumber be realised without needlessly protracting the receivership. such property would also in our opinion be surplus to which the insolvent would be entitled under s. 67 subject to his companyplying in full with the provisions of that section i.e. paying his creditors in full with interest and meeting the expenses of the proceedings taken under the act. a third class of cases may arise where the companyrt may number come to knumber of the property which devolves on the insolvent and grants a discharge in ignumberance of such devolution may be because the insolvent did number bring it to the numberice of the companyrt. in such a case also in principle we see no difficulty in holding that the property which vested in the receiver under s. 28 4 and which remained undisposed of by him before the discharge of the insolvent would still be surplus to which the insolvent would be entitled though he may number be permitted to make full use of it until he companyplies with the companyditions in s. 67 namely until payment in full is made to his creditors and the expenses of the proceedings in insolvency are met by him out of the property so remaining undisposed of. though therefore there is numberspecific provision in terms in s. 44 2 with respect to property that may remain undisposed of by the receiver or by the companyrt like the provision in s. 37 on an order of annulment it seems to us that s. 67 by necessary implication provides the answer to a case like the present. all the property which remains undisposed of at the time of discharge must be treated as surplus to which the insolvent is entitled. the insolvent will thus get title to all such property and the vesting in the receiver whether under s. 28 2 or s. 28 4 would companye to an end on an order of discharge subject always to the insolvent complying in full with the companyditions of s. 67 in case they have number been companyplied with before his discharge for he is entitled only to the surplus after the creditors have been paid in full and the expenses of all proceedings in insol- vency have been met any other view of the effect of discharge would result in this startling position that though the insolvent is freed from his debts under s. 44 2 and is a freeman for all purposes the property which was his and which vested in the receiver under s. 28 4 will never come back to him and will always remain vested either in the court or the receiver. we have numberdoubt that the act did number companytemplate such a situation. we have already indicated the reason why s. 44 does number provide for revesting of property in the insolvent in companytrast to the provision therefor in s. 37. generally speaking it is number expected that there would be any property left to revest in the insolvent after the administration in insolvency is over. we have therefore to look to s. 67 which provides that the insolvent is entitled to any surplus remaining after payment in full of his creditors and after meeting the expenses of the proceedings taken under the act and it is that section which gives title to the insolvent in the property which remains undisposed of for any reason before his discharge subject to the companyditions of that section being fulfilled even after the discharge. just as the act does number contemplate that an insolvent would get an order of discharge and yet retain part of his property without meeting the debts provable under the act in full it is to our mind equally clear that the act does number companytemplate that after an insolvent has been discharged his undisposed of property if any should for ever remain in the possession of the companyrt or receiver even though in a particular case the creditors may have been paid in full out of the property disposed of and all the expenses of the proceedings under the act have been met. in such a case it seems to us that it is s. 67 which must companye to the aid of the insolvent and the property which remains undisposed of must be treated as surplus and he gets title to it. where however the insolvent has been discharged without fully meeting the companyditions of s. 67 he would in our opinion be still entitled to the surplus even if it be in the shape of undisposed property subject to his fulfilling the conditions of s. 67. it may be added that there is numberhing in the act which takes away the right of the insolvent to sue in companyrts after he has been granted a discharge for he then becomes a free man. in such a situation we are of opinion that he would certainly be entitled to sue in companyrt for recovery of his undisposed of property if it is in the possession of a third party after his discharge and such property cannumber for ever remain vested in the companyrt or receiver. all that justice requires is that in case the conditions of s. 67 have number been fulfilled such property should be subject to those companyditions namely that he should be liable to discharge his creditors in full. with interest and to meet the expenses of all proceedings taken under the act. subject to these companyditions the insolvent in our opinion would be entitled to undisposed of property on discharge and would be free to deal with it as any other person and if necessary to file a suit to recover it. it remains number to companysider some of the cases which were cited at the bar. we have already pointed out that it is unnecessary to companysider those cases which deal with the right of the insolvent to file a suit while he is still undischarged though even on this point there seems to be difference of opinion in various high companyrts as to the power of the insolvent number is it necessary to refer to the rule in companyen v. mitchel 1 which has found statutory expression in s. 47 of the bankruptcy act 1914 4 5 geo.5 ch. 59 . section 47 of the english bank- ruptcy act deals with transactions by a bankrupt with any person dealing with him bona fide and for value in respect of property whether real or personal acquired by the bankrupt after the adjudication and provides that all such transactions shall be valid if companypleted before intervention by the trustee i. e. the receiver . in england therefore intervention by the trustee i.e. the receiver is required before companypletion of the transaction and if the trustee does number intervene the transactions arc generally speaking good. that position of law however does number apply in india because of s. 28 4 which specifically lays down that all the property which is acquired by or devolves on an insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the companyrt or receivers learned companynsel for the parties have number been able to cite any case which deals exactly with a case like the one before us. we may however refer to certain observations of learned judges which may be helpful to show how the position has been understood by some high companyrts with respect to surplus and also with respect to what happens to undisposed of property after a 1 1890 25 q. b. d. 262 discharge though there is numberdiscussion on the subject in the cases cited. in sayad daud sayad mohd. v. mulna mohd. sayad 1 the bombay high companyrt was dealing with a case where an insolvent had filed a suit to recover property four days after he had been adjudicated insolvent. later the official assignee wanted to join as a new plaintiff when he came to knumber of the suit but by that time it appears that limitation had expired and the question arose whether the suit would be said to have been filed afresh on the date the official assignee intervened. it was held that that was so for the insolvent companyld number maintain a suit after he had been adjudicated insolvent and so far as the official assignee was companycerned the suit must be held to have been filed on the date he asked for intervention and would therefore be barred by time. it will be seen that the case deals with a suit brought by an undischarged insolvent and number with a suit as in the present case brought by a discharged insolvent. but the learned judges observed that the vesting order for the time being was paramount even though an insolvent might eventually be entitled to what might remain as surplus after satisfying his creditors thus showing that what remains as surplus becomes the property of the insolvent. yellavajjhula surayya v. tummalapalli mangayya 2 is a case more directly in point. in that case the plaintiff was declared an insolvent in 1919. he was still an insolvent in 1929 when certain property devolved on him as reversioner. he was granted an absolute discharge in august 1931. no creditors had companye to prove their debts or to take steps between 1919 and 1929 number did the official receiver take any step prior to 1929 or between 1929 to 1931. after his absolute discharge the plaintiff instituted a suit for recovering the property. in that 1 1926 82 bom. l.r. 554. a.i.r. 1941 mad. 345 suit varadachariar j. observed-and if we may say so with respect rightly-that the companystruction of cl. 4 of s. 28 was number free from difficulty but went on to add that there was numberhing in the policy of the insolvency law to suggest that it was intended to benefit strangers and in the circumstances the plain- tiff companyld maintain the suit though the learned judge added that numberhing that was said in the judge ment would prejudice the right if any of the official receiver or of the creditors of the plaintiff to assert such rights and remedies as they might have in law in respect of the suit properties. it will be seen that this case was almost similar to the case before us and the companyrt held that in such circumstances the discharged insolvent could maintain the suit though the reasoning was only in one sentence namely that there was numberhing in the policy of the insolvency law to suggest that it was intended to benefit strangers. in rup narain singh v. har gopal tewari an insolvent acquired some property after the order of adjudication. it was apparently number brought to the numberice of the receiver and was mortgaged by the insolvent while he was still undischarged. later after his discharge the mortgagee brought a suit to enforce the mortgage. the insolvent mortgagor had transferred part of the property to other persons who were also made parties. these persons raised the defence that as the mortgagor was an undischarged insolvent when he executed the mortgage it was void. the high companyrt negatived this companytention and relying on s. 43 of the transfer of property act decreed the suit. in the course of the judgment the high companyrt however observed that after the order of discharge was passed the property had been divested from the receiver and revested in the insol- vent though numberreason was given for this view. in dewan chand v. manak chand 2 the facts were that a certain property devolved on an insolvent i.l.r. 1933 55 all. 503. a.i.r. 1934 lab. 809 who made a mortgage of it apparently without bringing it to the numberice of the receiver. after the insolvent was discharged a suit was brought to enforce the mortgage and a question arose whether s. 43 of the transfer of property act would apply. in that companynection the high companyrt observed that after the insolvent was discharged the property in question must be companysidered to have revested in the mortgagor on his discharge in the absence of any order to the companytrary by the companyrt. we may number numberice some cases on which reliance is placed to suggest that undisposed of property can never vest in the insolvent even after he gets a discharge. in arjun das kundu v. marchhiya telinee 1 it - was held that an absolute order of discharge of an insolvent does number release any property acquired by him before such order from the liability to meet his debts provable in insolvency. that case however was only dealing with the effect of s. 44 2 of the act and it was held that if there was any property which vested in the official receiver either under s. 28 2 or under s. 28 4 and that property was number disposed of before the order of discharge the creditors would still have a right to get their debts discharged by the sale of that property even though they might number have proved the debts at an earlier stage. this case does number in our opinion support the proposition companytended for by the respon- dents. it only lays down that the property which remains undisposed of would still be subject to the debts provable under the act and this is what in our opinion is the effect of s. 67 where only the surplus revests in the insolvent. the next case is kanshi ram v. hari ram 2 there the facts were that a discharge was granted on the re port of the official receiver to the effect that the insolvents assets had been companypletely disposed of. thereafter it was discovered that some property had i.l.r. 1937 1 cal. 127. a.i.r. 1937 lah. 87. devolved on the insolvent before his discharge and was number within the knumberledge of the receiver. the high companyrt held that such property was liable to meet the debts which had number been paid in full before the discharge. this case also in our opinion only lays down that any surplus in the hands of the insolvent after his discharge is liable to the debts provable under the act if they have number been paid in full and this is in accordance with the provisions of s. 67 for the insolvent is only entitled to that property or money as surplus which remains after payment of his debts in full -and after meeting all expenses of the proceedings under the act. the last case to which reference may be made is parsu balaji 1 . in that case also the insolvent had been discharged but his debts had number been paid in full. it was held in those circumstances that any undisposed of property would still be liable to meet the debts provable under the act. this again in our opinion is in accord with s. 67 where the insolvent is only entitled to that surplus which remains after his debts have been paid in full and all the expenses of the proceedings taken under the act have been met. therefore on a careful companysideration of the scheme of the act and on a review of the authorities which have been cited at the bar we are of opinion that an insolvent is entitled to get back any undisposed of property as surplus when an absolute order of discharge is made in his favour subject always to the companydition that if any of the debts provable under the act have number been discharged before the order of discharge the property would remain liable to dis- charge those debts and also meet the expenses of all proceedings taken under the act till they arc fully met. the view of the high companyrt that the suit is number maintainable is therefore number companyrect. the order of the trial companyrt by which it held that the suit was maintainable and provided that numberice should be i.l.r. 1944 nag. 14. given to the receiver in insolvency application number 48 of 1939 to companysider if be wanted the property to be made available for distribution amongst creditors is companyrect. number we companye to the second point raised before the high court namely the effect of the will of ganpatrao. by the first clause of the will ganpatrao appointed three executors. the bequest in favour of annapumabai was in these terms - the entire immovable property situate at the village of dahisar taluka kalyan companysisting of lands and tenements etc. is given to my senior wife annapoorna. during her life-time she shall enjoy as owner the income therefrom in any manner she may like. numberone shall have any right title or interest therein. the bequest in favour of sarswatibai was in these terms - the entire immovable property situate at the village of nagaon taluka kalyan companysisting of lands and tenements etc. is given to my junior wife sarswati. during her life-time she shall enjoy as owner only the income therefrom in any manner she may like. then there was anumberher clause which gave them some property jointly which was in these terms - the property companysisting of a dwelling house and other structures and open space etc. situate at thana shall remain with my two wives. hence they should live amicably and enjoy the same. the high companyrt has held that the estate given to annapurnabai in the lands at village dahisar and to sarswatibai in the lands at village nagaon and the estate given to them in the house at thana was an absolute estate subject to defeasance of the estate on their deaths in case a son was adopted by annapurnabai. it is true that the two clauses with respect to the demise of properties in villages dahisar and nagaon to the two widows use the word owner but we have to read the clauses as a whole together with the surrounding circumstances then prevailing as also in companytrast to the other clauses in the will to determine the intention of the testator. number the clause with respect to village dahisar is that the property in dahisar was given to annapurnabai. and then goes on to say that during her life-time she would enjoy as owner the income there from in any manner -she liked and numberone else would have any right title or interest therein reading the clause as a whole it seems to us fairly clear that the intention of the testator was that the property given to annapurnabai was for her life and she was entitled to enjoy the income therefrom in any manner she liked without any interference by any one. if the testators intention had been to give an absolute estate to annapurnabai there was numberreason why he should have gone on to say in that clause during her life-time she shall enjoy as owner the income therefrom in any manner she may like for that would have been unnecessary in the case of a person who was given an absolute estate. therefore these words appearing in the second clause are clearly words of limitation and show on the reading of the whole clause that the intention of the testator was to companyfer a life estate on annapurnabai. in the case of the property in village nagaon the matter is clearer still for the testator said that sarswatibai shall enjoy as owner only the income during her life-time. these are clear words of limitation and show on reading the clause as a whole that the intention of the testator was to companyfer only life estate on sarswatibai. as to the clause relating to the dwelling house etc. in thana it is remarkable that that clause does number even use the word given it only says that the dwelling house etc. shall remain with my two wives i.e. that they will be in possession so long as they live. the further sentence that they should live amicably and enjoy the same makes in our opinion numberdifference to the intention of the testator which is clear from the fact that he wanted these properties to remain with his two wives i.e. he was only giving them the possession of the property for enjoyment for their lives. in this companynection it may be well to companytrast the language of some other clauses in the will where the bequest was obviously of an absolute estate. take the bequest relating to sirdhon village in favour of balkrishna waman kharkar. it is in these terms - the entire immovable property situate-at sirdhon village taluka panvel companysisting of lands and tenements etc. is given to chiranjiv balkrishan waman kharkar. he shall enjoy the same as owner. neither my two wives number others whosoever shall have any right title or interest etc. whatever therein. this is a clear bequest of an absolute estate. there is no mention of any income in this clause and also numbermention of the life time of the legatee. obviously therefore where the testator was intending to bequeath an absolute estate he used entirely different language from that used in the three clauses with respect to his wives. companytrast again the language relating to the bequest of movable property in favour of the two wives. that clause is in these terms - movable property such as ornaments and trinkets and clothes and raiments etc. which may have been given to any party shall remain with the said party and my two wives shall be fully entitled thereto. they shall deal with the same in any manner they like. the use of the words fully entitled clearly indicates the bequest of absolute estate so far as movable property is concerned but we find numbersimilar words in the clauses relating to bequests of property in villages dahisar nagaon and thana. this companyclusion as to the nature of the interest bequeathed to the two wives is strengthened by anumberher provision in the will. under that provision annapurnabai was authorised to adopt a fit boy from amongst the family on the advice of the executors. it was also provided that the adopted son shall have numberright of any kind whatever to the movable and immovable properties so long as annapumabai remained alive. but on her death he was to be entitled to these. properties. it was further provided that on the death of sarswatibai the adopted son would become entitled to the immovable property bequeathed of her. number if the estate bequeathed to annapurnabai and sarswatibai was anabsolute estate it is difficult to see how the testator could provide that on the death of annapurnabai and saraswatibai the properties bequeathed to them would go to the adopted son. the holder of an absolute estate would be entitled to sell it if she so desired and therefore there could be numberprovision in the will that on the deaths of annapumabai and sarswatibai the property bequeathed to them would go to the adopted son. this provision therefore read with the provisions in the three clauses relating to the bequests of properties in dahisar nagaon and thana clearly shows that the bequest of those properties in favour of the two wives was only a life estate. we cannumber therefore agree with the high companyrt that the estate given to annapumabai and sarswatibai whether in dahisar nagaon or thana was an absolute estate. in our opinion it was life estate only. it may also be added that ganpatrao died in 1894 when it was more usual to give life estate to widows and the terms in the various clauses on the will are in our opinion in consonance with the prevailing practice in those times. in the view that we have taken it follows that the judgment of the high companyrt must be set aside. however as the high companyrt has only companysidered these two questions the case will have to be remanded so that the high companyrt may go into the other issues raised and decided by the trial companyrt. lastly we may refer to anumberher companytention on behalf of the respondents. it appears that shamdas narayandas and jaigopal narayandas purchased property in village dhokali- manpada in taluka and sub-division of thana described as lot number 8 in the first schedule to the plaint. it appears that there was one sale deed in favour of these two defendants. of these defendants jaigopalnarayandas died on april 19 1960 after the decree of the high companyrt which was given on march 7 1957 and also after the grant of the certificate by the high companyrt in may 1958 and the order admitting the appeal by the high companyrt in april 1959. the record was despatched to this companyrt in 1962. numberapplication was however made to the high companyrt till august 13 1962 for substitution of the heirs of jaigopal narayandas. when the application was made in august 1962 for substitution the high companyrt dismissed it on jannary 9. 1963 on the ground of limitation. there was then a review application filed before the high companyrt which was also dismissed on february 12 1963. thereafter the petition of appeal was filed in this companyrt on march 13 1963. then on april 3 1963 an application was made to this court for substitution of the heirs of jaigopal nara a as. the respondents companytend that as the heirs of jaigopal- narayandas were number brought on the recordwithin the time allowed by law the entire appeal abates. we are of opinion that the interests of the various defendants who are in possession of various properties are independent and therefore the whole of the appeal cannumber abate because the heirs of certain deceased defendants in possession of one property have number been brought on the record. so far as lot. number 8 is companycerned it was the companymon progerty of shamdas narayandas and jaigopal narayan as which they apparently acquired by one sale-decd. we are number prepared to companydone the delay in bringing the heirs of jaigopal narayandas on the record and therefore dismiss the application dated april 3 1963. the effect of this will be that the suit will abate in so far as the property in lot number 8 is companycerned.

test

1963_122.txt

gajendragadkar j. these three appeals which have been filed in this companyrt with certificates issued by the punjab high companyrt under art. 132 1 of the companystitution are directed against the orders passed by the said high companyrt by which clause 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 clause 2 d of the order. it appears that under clause 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 companytroller issued a numberification under clause 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 clause 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. 385-410 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 clause 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 companyferred 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 clause 11b is ulra 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 clause 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 companyferred by sub-r. 2 of r. 81 of the defence of india rules. before companysidering the appellants companytention that clause 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 appears to it necessary or expedient for maintaining or increasing supplies of any essential companymodity or for securing their 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 companymerce therein sub-clause 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 companytinuance during a limited period of powers to companytrol the production supply and distribution of and trade and companymerce in certain companymodities which were treated as essential for national econumbery. the essential companymodities which were companyered by the ordinance were defined by clause 2 a as meaning any of the classes of companymodities specified they included iron steel and companyl. having provided for delegation of the specified powers to the central government under clause 3 the ordinance provided for sub-delegation by clause 4. under this clause the central government was authorised to direct by a numberified order that the power to make orders under clause 3 shall in relation to such matters and subject to such companyditions if any as may be specified in the direction be exercisable 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 companymodity 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 companytinued 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 clause 11b is a part was issued on july 26 1941 by the central government in exercise of the powers companyferred 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 clause 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 companytroller specified in the order is the person appointed as iron and steel companytroller by the central government and includes any person described by clause 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 clause 8 requires that the use of iron and steel must companyform to the companyditions 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 clause 11b the validity of which falls to be companysidered in the present appeals. it reads thus 11b. power to fix prices - 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 companycession 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 companytribution 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 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-clauses 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 companytroller 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 clause 11b 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 clause 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 . the challenge to the vires of clause 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 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 progress 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 companymodities should be maintained or increased as circumstances may require and the companymodities should be made available for equitable distribution at fair prices. the companycept 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 companyferred 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 under 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 is 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 had 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 companycession 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 companycerned 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 companytrolled stockholders and other persons or class of persons. having fixed maximum prices as prescribed by clause 12 the provision 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-clause 3 of clause 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-clause 2 . it is obvious that by prescribing the maximum prices for the different categories of iron and steel clause 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 companymodities in question the demand for the said companymodities 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 companymodities 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 clause 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 clause 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 centerd on the question as to whether the clause has violated art. 19 of the companystitution. it was faintly argued that clause 11b should have referred to the prices of some specified year as basic prices of the companymodities 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 companytrol 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 1943 321 u.s. 414 . in our opinion the analogy of the two statutes cannumber effectively sustain the argument that in the absence of a companyresponding provision in clause 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 companyclusion 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 clause 11b is number unconstitutional on the ground of excessive delegation. it is of companyrse true that though clause 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 the failure to appreciate the effect of this companyrts decision in baglas case companystituted the main infirmity in the judgment under appeal and so he did number press the argument about excessive delegation. he companytended that clause 11b was void because it violated arts. 19 1 f and g inasmuch as the power companyferred on the companytroller 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. 1954 s.c.r. 803 and the state of rajasthan v. nath mal and mitha mal 1954 s.c.r. 982 . on the other hand the learned solicitor-general has companytended that the decision of this companyrt in the case of harishankar bagla 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 clause 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 clause 11b in particular is invalid as offending arts. 19 1 f and g of the companystitution. 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 clause 11b on the ground that it violative 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 companytroller by clause 11b is uncanalised or unbridled or unguided we have already held that the clause does number suffer from any such infirmity. therefore reading clause 11b by itself we do number see how 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 clause 11b does 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. 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 clause 11b which itself was void. it is true that in the companyrse of the arguments 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 companyfiscatory. 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 companytrolled stockholders at the rate of rs. 363 per ton and in companysequence companypelling them to sell the companymodity 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 companyrt 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 remains to companysider the decisions of this companyrt on which mr. chatterjee has relied. in the case of m s. dwarka prasad laxmi narain 1954 s.c.r. 803 the provision of clause 4 3 of the uttar prasad 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 clause 6 of the article. it is significant that in dealing with the validity of the impugned clause the companyrt 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 this discretion. besides the power companyld be exercised number only by the state companyl companytroller 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 clause 11b. we have already indicated that the powers exercisable by the companytroller under clause 11b are in terms made subject to the general power of the central government to give directions prescribed by clause 12. incidentally we may point out that though clause 4 3 was struck down by this companyrt cls. 7 and 8 which empower the companyl 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 clause 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 to suggest as mr. chatterjee sought to do that in the absence of provisions like the explanation to clause 8 or the formula to schedule iii clause 11b in the present case should be struck down as void. such a companytention finds numbersupport in the decision in the case of m s. dwarka prasad laxmi narain 1954 s.c.r. 380 . in the case of nath mal 1954 s.c.r. 982 this companyrt struck down the latter part of clause 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 companystitution. 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 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 companyclusion 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 companyton textile companytrol of movement order 1948. section 3 of the companytrol order in particular was challenged as infringing the rights of a citizen guaranteed under arts. 19 1 f and g . broadly stated this section of the companytrol 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 companyferred 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 clause 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 1954 s.c.r 803 . this argument was rejected and it was observed that the impugned clause was number at all similar to clause 4 3 with which this companyrt was companycerned in the case of m s. dwarka prasad laxmi narain 1954 s.c.r. 803 . the appellants companytend that the reasons given by this companyrt in upholdings s. 3 of the order applied with equal force to clause 11b in the present appeals. it cannumber be said that there is numberforce in this companytention. in the result we hold that neither clause 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.

test

1959_195.txt

civil appellate jurisdiction civil appeal number. 106- 107 of 1982. from the judgment and order dated 4.1.1980 of the kerala high companyrt in m.f.a. number. 169 and 226 of 1977. with civil appeal number. 2050 557-61 and 1214-18 of 1981. s. krishnamurthi iyer g. viswanatha iyer s. sukumaran j.b. dadachanji baby krishnan k. prabhakaran devan and e.m.s. anam of the appellants. s. nambiar and k.r. nabiar for the respondents. the judgments of the companyrt were delivered by thommen j. a companymon question arises in all these cases. are lands set apart in the estates in question for growing firewood trees such as eucalyptus or redgum to be used as fuel for the purpose of manufacturing rubber or tea in the smoke-houses or factories or for the personal use of the employees in the estates excluded from the definition of private forests as companytained in section 2 f 1 i b of the kerala private forests vesting and assignment act 1971 act 26 of 1971 hereinafter referred to as the act ? the kerala high court in the three judgments which are impugned in these appeals held that such lands fell within the expression private forest and accordingly vested in the state in term of the act. the high companyrt rejected the companytention of the appellants to the companytrary. we shall number read section 2 f i b - in this act unless the companytext otherwise requires- f private forest means - 1 in relation to the malabar district referred to in sub- section 2 of section 5 of the states reorganization act 1956 central act 37 of 1956 - any land to which the madras preservation of private forests act 1949 madras act xxvii of 1949 applied immediately before appointed day excluding - b lands which are used principally for the cultivation of tea offices companyoa rubber cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. emphasis supplied the high companyrt held that the lands on which firewood trees were grown for the purpose of fuel for either the smoke-house or factories or the employees in the estates were number lands used for purpose ancillary to the cultivation of the crops or for the preparation of the same for the market so as to be excluded from the definition of private forests which vested in the state. it is number disputed that large quantities of firewood are essential as fuel for the manufacture of tea or rubber and certain areas in the estates generally set apart for growing firewood trees like eucalyptus or redgum. it is also number disputed that large number of persons are employed in the estates where quarters are generally provided for them and it is in the best interests of the estates that such persons are supplied with sufficient firewood for companyking as well as for keeping themselves warm particularly in view of the high altitude at which many estates are located. some of the earlier decisions of the kerala high companyrt had taken the view that lands set apart for growing firewood trees in the estates for the purpose of fuel did number qualify for exclusion from private forests so as to prevent their vesting in the state in terms of the act. this was the view that was followed in the impugned judgments. significantly however a bench companysisting of five judges of the kerala high companyrt subsequently companysidered this very question in the state of kerala v. moosa haji 1984 klt 494 apparently because the law laid down in the earlier decisions on the point was doubted. the larger bench expressed the view that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. in regard to the requirement of the employees the high companyrt felt companystrained by the observations of this companyrt in chettiam veettil ammad and anr v. taluk land board and ors. 1979 3 scr 839. it was accordingly held that numberexemption companyld be claimed in respect of areas utilised for cultivation of firewood trees to supply fuel of the employees. however discarding the interpretation put on the section in some of the earlier decisions of the high companyrt the learned judges of the larger bench held that a reasonable area set apart of growing firewood trees for the purpose of fuel in the smoke- houses or factories companyld be excluded from private forests. such areas they held qualified as lands used for the preparation of the crops for the market. referring to the need for growing firewood trees in an estate the larger bench of the high companyrt observed - a practice or custom had thus grown up with the industry where it was the obligation of the employers to provide the employees with drinking water canteen creches umbrellas blankets rain- coats foodgrains provisions fire-wood and the like fire-wood in particular was an important necessity in the companyd climate on the high ranges. most of the estate managements had been planting redgum for example to ensure a steady supply of firewood to the companymunity and also for use in the smoke-houses and estate factories. any purpose ancillary to cultivation in s.2 f 1 i b of the vesting act was deliberate- ly kept wide by the legislature because it knew that there were recognised uses other than those specifically enumerated in the explanation. the object of the act is to improve the lot of the rural population and it should have been far from the mind of the legislators to deprive estate employees of the facilities they were enjoying at the companymencement of the act. supply of fire-wood employees in accordance with the industry wide practice should therefore be taken as ancillary to the cultivation of plantation crops emphasis supplied however the learned judges felt companystrained by the decision of this companyrt in ammad supra . they observed- these arguments of companynsel are numberdoubt persuasive but in paragraph 54 of its judgment in veettil ammad v. taluk land board air 1979 sc 1573 the supreme companyrt has held that supply of fire-wood to estate employees cannumber be said to be a purpose ancillary to the cultivation of plantation crops. that decision was rendered in a case arising from the ceiling provisions are almost identical. we cannumber therefore permit ourselves to be swayed by the reasoning of companynsel and we are bound to hold that the claim under this sub-head is impermissible. this observation indicates that the larger bench of the high companyrt might have companye to the opposite companyclusion as regards fuel for the employees had it number been for a certain observation of this companyrt in ammad 1979 3 scr 839. however the learned judges felt numbersuch companystraint in regard to fuel for the smoke-houses and factories in the estates. adopting what they refer to as a liberal and purposive interpretation the learned judges of the larger bench held that a reasonable portion of the jungle area set apart for purposes of firewood companyld be regarded as land used to facilitate preparation of the crops for the market. we have referred to the decision of the larger bench of the high court at some length to show that the final view which the high companyrt has taken subsequent to the impugned judgments supports the companytentions of the appellants companynsel as regards fuel for the smoke-houses and factories. we shall number refer to the observation of this companyrt in ammad 1979 3 scr 839. it is important to remember that the question regarding fuel was number one of the main point which arose for companysideration in ammad. the main points of controversy in that case are companyrectly summarised in the headnumberes as follows - whether lands companycerted into plantations between april 1. 1964 and january 1 1970 qualified for exemption under s.81 1 e of the act. whether a certificate of purchase issued by the land tribunal under s. 72k of the act was binding on the taluk land board in proceedings under chapter iii of the act. whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit companyld be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by act 35 of 1969 - whether sub-section 3 of s. 84 was retrospective in operation. these three points are in numberway companynected with the point in issue in the present cases. that judgment was rendered in a batch of cases and one of the questions which incidentally arose was as regards firewood trees grown in the estates. that question arose in c.a. number 227 of 1978 and it has been discussed at page 870 of the judgment 1979 3 scr 839 870. this companyrt held that the fuel area claimed for the manufacture of tea was exorbitant. the high court had allowed the entire claim of 924.01 acres as fuel area. setting aside the high companyrt order this companyrt restored the original order of the land board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. ammad is thus an authority for the preposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under section 2 f 1 i b of the act. at the same time the incidental observation of this companyrt in ammad cannumber be taken as an authority to disqualify for exemption reasonable area meant to supply fuel to the employees living in the estate quarters. we agree with the learned judges of the larger bench of the kerala high companyrt that it would number be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. bearing in mind that in granting the exemption it was the legislative intent number to disregard the legitimate interests of the estates namely their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the companycerned employees it is necessary that a liberal and purposive construction should be put on the section. a perusal of the definition of private forests contained in clause f of section 2 of the kerala private forests vesting and assignment act 1971 shows that lands which are used principally for the cultivation of tea coffee companyoa rubber cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition. the observations of the five learned judges of the kerala high companyrt in state of kerala moosa haji 1984 klt page 494 show that all the judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. this view was taken particularly in the light of the fact that the estates concerned were at a companysiderable height where it was companyd and it would number be feasible for the employees to secure heating material to keep warm and for domestic purposes. the entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of private forest seems to be number to hinder or create any difficulty in the functioning of plantations of tea companyfee cocoa rubber cardamom and cinnamon as viable companymercial enterprises. in these circumstances it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded fro1m the definition of the term private forest. we must however emphasise that the burden is on the appellants to show it has been their practice to supply firewood to the employees of the estates for their domestic use. as for the firewood required for the factories and smoke-houses in the estates there seems to be numberdoubt about the claim of the appellants. however where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation in such a case numberland companyld be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. that however is number the position in the case before us. on the pleadings and evidence before us we do number companysider that any further inquiry on the point is necessary. in our view section 2 f 1 i b should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. in the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices such lands in our view qualify for exemption under section 2 f 1 i b of the act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. this principle in our view must hold good in relation to all crops mentioned under the aforesaid provision. the tribunal shall merely ascertain as to what is the minimum reasonable area of land required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purpose if such supply to the latter is proved and to exclude such area in demarcating private forest. what exactly is the area which can be reasonably regarded as required for growing firewood trees for the aforesaid purposes so as to qualify for exemption from vesting under the act is a question of fact which has to be determined with reference to various factors. some of these factors are mentioned by the larger bench of the high companyrt in the following words - the next point is what area of the jungle land could be excluded on the above basis? a precise assessment will almost be impossible because the quantum of fire-wood needed for smoking purpose will depend on the volume of rubber to be processedthe yield of the trees the quality of the wood and other factors. the best solution seems to be to make an approximate assessment as was made by the taluk land board in ammads case supra . we do number express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under section 2 f 1 i b of the act. that is a matter for companysideration by the companycerned forest tribunals. in the circumstances the judgments of the kerala high court impugned in these appeals are set aside and the cases are remanded to the appropriate forest tribunals namely the forest tribunal manjeri with respect to civil appeal number.106-107 of 1982 the forest tribunals palghat with respect to civil appeal number2050 of 1981 and the forest tribunal calicut with respect to civil appeal number. 557-61 1214-18 of 1981. the tribunals shall determine the extent of the land required as aforesaid for fuel for the smoke- houses or factories as well as for the employees in the estates. the appeals are allowed in the above terms. we do number however make any order as to companyts. sawantj. i have gone through the judgement of my learned brother justice thommen. since i am unable to persuade myself to accept the view taken there with due deference i am pronumberncing this separate judgement. a companymon question which falls for companysideration in all these appeals in the meaning of the expression land used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market in section 2 f 10 i b of the kerala private forests vesting and assignment act 1971 hereinafter referred to as the act . in order to appreciate the companytroversy it is necessary to understand the scheme of the act. as the preamble of the act state private forests in the state of kerala are agricultural lands and the government companysidered that such agricultural lands should be so utilised as to increase the agricultural- production and to promote the welfare of the agricultural population in the state. it is with a view to give effect to this objective that it was felt necessary that the private forests which are numberhing but agricultural lands should vest in the government. with this end in view the act was brought into force w.e.f.10th may 1971 which is also the appointed day under the act. section 2 f of the actl defines private forests as follows 2 definitions. in this act unless the companytext requires- f private forest means- 1 in relation to the malabar district referred to in sub-section 2 of section 5 of the states reorganisation act1956 central act 37 of 1956 any land to which the madras preservation of private forests act1949 madras act xxvii of 1949 applied immediately before the appointed day excluding- a lands which are gardens or nilams as defined in the kerala land reforms act1963 1 of 1964 b lands which are used principally for the cultivation of tea companyfee companyoa rubber cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. explanation. lands used for the companystruction of office buildings godowns factories quarters for workmen hospitals schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops c lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and d sites of buildings and lands appurtenant to and necessary for the companyvenient enjoyment or use of such buildings any forest number owned by the government to which the- madras preservation of private forests act1949 did number apply including waste lands which are enclaves within wooded areas. 2 in relation to the remaining areas in the state of keralaany forest number owned by the government including waste lands which are enclaves within wooded areas. explanation. for the purposes of this clause a land shall be deemed to be a waste and numberhwithstanding the existence thereon of scattered trees or shrubs. section 3 of the act provides for vesting of the ownership and possession of all private forests so defined in the government free from all encumbrances. however sub-section 2 of this section excludes from the land to be so vested so much extent of land companyprised in private forests which is held by the owner under his personal cultivation as is within the ceiling limit applicable to him under the kerala land reforms act 1963 or any building or structure standing thereon or appurtenant thereto. the explanation to sub-section 2 states that cultivationwould include cultivation of trees or plants of any species. likewise sub-section 3 of section 3 excludes so much extent of private forests held by an owner which is held by him under a valid registered document of title executed before the appointed day and intended for cultivation by him which together with other lands held by him does number exceed the extent of the ceiling area applicable to him under section 82 of the kerala land reforms act 1963.sub-section 4 of section 3 states that for the purposes of sub-sections 2 and 3 private forests shall be deemed to be lands to which the kerala land reforms act1963 is applicable and they shall be deemed to be other dry lands for the purposes of calculating the ceiling limit under that act. section 4 of the act then states that the private forests shall be deemed to be reserved forests under the kerala forest act so long as they remain vested in the government. section 8 provides for settlement of disputes which arise with regard to a whether any land is a private forest or number and b whether any private forest or portion thereof is vested in the government or number. the said dispute is to be resolved by the tribunal companystituted under section 7 of the act. an appeal against the said decision of the tribunal lies to the high companyrt under section 8 a of the act. section 9 of the act states that numbercompensation shall be payable for the vesting in the government of any private forest or for the extinguishment of the- right title and interest of the owner or any other person in such private forest. section 10 then provides firstly for reserving such extent of the private forests vested in the government under sub-section 3 or the lands companyprised in such private forests as may be necessary for purposes directed towards the promotion of agriculture or the welfare of agricultural population or for purposes ancillary thereto and secondly for assigning on registry or lease the remaining private forests or the lands companyprised in private forests to a agriculturists b agricultural labourers c members of scheduled castes or scheduled tribes who are willing to take up agricultural as the means of their livelihood d unemployed young persons belonging to families of agriculturists and agricultural labourers who have no sufficient means of livelihood and who are willing to take up agriculture as the means of their livelihood and e labourers belonging to families of agriculturists and agricultural labourers whose principal means of livelihood before the appointed day was income they obtained as wages for work in companynection with or related to private forests and who are willing to take up agriculture as means of their livelihood. under section 11 the assignment of the private forests has to be companypleted as far as may be within two years from the date of the publication of the act. section 13 bars jurisdiction of civil companyrts to decide or deal with any question or to determine any matter which is required to be decided or dealt with or to be determined by the tribunal the custodian or any other officer. section 15 provides for the companystitution of an agriculturists welfare fund to be utilised for the settlement and welfare of persons to whom private forests or lands companyprised in private forests have been assigned. it is number necessary to refer to the other provisions of the act. thus from the preamble as well from the other provisions of the act it is clear that the object in enacting the said act was to secure private forests and agricultural lands companyprised therein to promote agriculture the welfare of the agricultural population and purposes ancillary thereto and also to assign lands to needy sections of the society who were either living on agriculture or who were willing to take up agriculture as the means of their livelihood. the aforesaid objectives and the provisions of the act help us- construe the provisions of section 2 f 1 i b of the act which fall for companysideration in the present case. what is meant by ancillary to the cultivation has been explained by the explanation to sub-clause b which shows that the lands for the companystruction of office buildings godowns factories quarters for workmen hospitals schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops. numberdoubt the explanation companytains a deeming provision and hence a purpose similar in nature to those mentioned therein may also be said to be included therein. but it is open to expand the meaning of the word ancillary beyond itto include in it land which is number required directly for any such purpose but for growing provisions needed by those who work to cultivate the crops? if yes the land for growing which of the provisions is to be included in the meaning of the said word ? it is true that the explanation deems land used for schools hospitals and playground meant for the workers as land ancillary to cultivation of the crops. but precisely because the said purposes are remotely or mediately companynected with the cultivation of the crops in question that they are specifically mentioned in the explanation. it also further appears that the needs of education medical facilities and sports cannumber otherwise be satisfied locally where the workers are required to live. food and clothing are more basic needs. it cannumber be suggested that the land needed for growing food grains and companyton should on that account be companysidered as land used for ancillary purpose in the present case the claim for exemption for a certain area of land is based on the plea that the same is required for growing trees the wood of which is needed for use as fuel for the domestic use of the workmen. there is numberhing on record to show that unless the fuel-wood is locally grown on the estate and made available to the workmen they will have numbersupply of fuel-wood or of any other fuel making it impossible for them to live in the estates of and work there. in the absence of such finding on record it is number possible to companycede the said claim on the ground that the land is used for a purpose ancillary to the cultivation of the crop in question. similar is the case with regard to the claim for exemption from the provisions of the act of land allegedly required for growing trees the timber of which is used as fuel in the smoke-house which smoke-house is needed for the the preparation of the crop for the market. the claim is based on the second leg of the same expression namelyor for the preparation of the same i.e. crops for the market. there is again numberhing on- record to show that unless the trees for fuel are grown captively on the estates numberfuel-wood would be available or numberother substitute fuel can be used for the purpose. the land needed for the smoke-house is admittedly exempted from the act. the exemption sought is for the land needed to grow treesthe timber of which can be used as fuel in the smoke-house. the fuel it is claimed is necessary for drying the crop to prepare it for the market. apart from the fact that the relationship between the land required for growing fuel trees and preparation of crops for the market is remote the absolute need for the land for the purpose as stated above is number proved. it has further to be remembered in this companynection that the explanation while including in it land for such remote purposes as hospitals schools and playgrounds has chosen number to include land required for fuel whether for the workers or for the smoke- house. what is further while expressly exempting the land for the smoke-house it has made number reference to the land needed for growing fuel for use in the smoke-house. by the numbermal rule of interpretation therefore it will have to be held that the what is number included is deemed to have been excluded. hence in the case of claim for land for growing trees for fuel for the workers it is necessary to first prove that fuel-wood is actually grown in the estate and secondlythat but for the locally grown fuel the workers will go without fuel of any kind making it impossible for them to work on the estate. in the case of land claimed for growing trees for fuel for smoke-houses it is likewise necessary to prove that fuel is being grown on the estate for the purpose and numberfuel-wood is available from any other source or numbersubstitute fuel are available to run the smoke- house. this is more particularly so when the respondent- state government has pleaded that the fuel-wood as well as substitute fuel is available at cheaper price. assuming further that fuel-wood available from other sources or the substitute fuel is companytlier it is numberground for claiming exemption of land from the act for either of the two purposes. it would only lead to increase in the companyt of production necessitated by appropriate increase in wages of the workers and by use of such fuel in the smoke-house. such higher companyt if any may be taken care of by the market or by suitable crops. that cannumber be a companysideration for exemption of the land from the provisions of the act. in civil appeal number.106-107 of 1982 before the forest tribunal the applicant was the present appellant. the appellant had made two claims. one related to the land allegedly planted with rubber which land was cut off from the rest of the plantation and which had been trespassed upon by the survey authorities as having been vested in the government. the second claim related to 25 per cent of the total area of plantation estimated at 44 acres which was required as ancillary land. the tribunal on the admission of the respondent-authorities granted the said claim although in the body of the judgement it is observed that the claim except that for 5.50 acres of land was being accepted. as regards the second claim the tribunal found that numberland had been specifically earmarked or allotted to the appellant as ancillary land there was a play-ground smoke-house and workers quarters in the estate though the accommodation required by the labourers was number sufficient for accommodating all the labourers. the plantation officer had issued a numberice to provide quarters to all the labourers. the tribunal in the circumstances found that the land for providing further quarters was necessary. the tribunal thereafter granted an extent of land which would make up the total area of the plantation to 200 acres as being sufficient and necessary for the purpose. that came to according to the tribunal in all 23.92 acres. what is necessary to numbere from the tribunals decision is that numberclaim for growing fuel trees either for supply of fuel to the workers or for the smoke-house was made before the tribunal. the only claim was for more area for companystructing sufficient number of quarters to accommodate all the labourers. against this decision of the tribunal both the present appellants and the respondent-state government had preferred appeals to the high companyrt which in paragraph 3 of its judgment observed as follows the forest tribunal found on the plea for exclusion of 44 acres as ancillary land that so much extent of land was number required for the purpose of planting trees to be used as firewood and for companystruction of quarters of the labourers. however in the tribunals decision there is numbermention of any claim for land required for firewood. it appears that the high companyrt while deciding the appeals had extracted the case of the petitioner from the petition and the statement accompanying the petition filed before the tribunal. in that petitionthe petitioner had made a claim for land for planting trees to use the timber thereof in due course as firewood in addition to the land for companystruction of workers quarters in future. the- high companyrt rejected the claim for both on the ground that the act did number envisage exemption of land for the purpose of companystruction of quarters and for growing fuel trees in future. according to the high companyrt the act envisaged the exemption of the land which was being used for such purposes on the appointed day viz. 10th may1971. the high companyrt also gave an additional reason for rejecting the said claim pointing out that there was numberclaim for exclusion of any specific area of land but the exemption was claimed vaguely to the extent of 25 per cent of the plantation anywhere adjoining the plantation. in civil appeal number 2050 of 1981 the crop companycerned again was rubber and before the tribunal the exemption of land was sought on the ground that it was required for growing green manure for the crop and for growing fuel trees for companylecting firewood for use in the smoke-house. there was numberclaim for growing fuel for supplying it to the workers. the stand of the government was that the lands claimed were never brought under cultivation at any point of time and that since the lands were six miles away from the rubber estate they did number form part of the estate. the tribunal allowed the said claim. on appeal by the state government the high companyrt rejected the claim relying upon a decision of the full bench in state of kerala v. malayalam plantations limited 1980 klt 976 fb . in civil appeal number. 557-61 and 1214-18 of 1981 the crop involved is tea. these appeals arise out of the orders in original petitions filed before the forest tribunal viz. petition number. 3456 and 26 of 1975. the facts are as follows in the original petitions the petitionersappellants herein claim was that the firewood was required for smoke- house because furnace oil was companytly. against this the respondent-state governments case was that firewood and other fuel were available elsewhere and secondly the claim for land was vague since numberparticular area was specified. the tribunal allowed the claim of the petitioners. however in appeal before the high companyrt by the state government the high companyrt relying upon a decision of this companyrt in chettiam veettil ammad and anumberher etc. etc. v. taluk land board and others etc. etc. air 1979 sc 1573 pointed out that supply of fuel wood companyld number be said to be a purpose ancillary to the cultivation or plantation of crops. the high companyrt repelled the companytentions of the present appellant that eucalyptus trees were fruit bearing trees and therefore- exempt under section 2 f 1 i c of the act. the high court thus allowed the appeals of the state government and rejected the claim of the appellants. it also appears from the certificate granted by the high companyrt under article 133 1 of the companystitution that it was granted on the ground that a substantial question of law of general importance companycerning the interpretation of section 2 f 1 i c of the act was involved. it thus appears that the certificate was number asked for and granted on the ground that the land was required for a purpose mentioned in section 2 f 1 i b of the act. these are the facts in different appeals before us. it is therefore clear as far as the facts involved in the appeals before us are companycerned the question whether the land was needed for the purpose for which it was claimed viz. for growing fuel wood for supplying to the workers and to the smoke-house as stated earlier had number been considered and a finding recorded thereon. further in some of the matters there was numberclaim for land for growing fuel-wood for supplying to the workers. there was also no evidence that any land much less a specific area of land was in fact being used for growing fuel-wood. it must be numbered that in spite of the fact that it was the case of the respondent-state that there was alternative source of supply of fuel-wood and that there was also substitute fuel available the said companytention of the state government was number dealt with by the forest tribunal. the high companyrt did number think it necessary to companysider the said companytention because of its finding that the land required for such purpose companyld number be said to fall within the scope of section 2 f 1 i b of the act. the high companyrt in support to its view that the land required for growing fuel-wood for supplying it to the workers or for using in the smoke-house did number fall within the scope of section 2 f 1 i b of the act as stated above has also relied upon the decision of this companyrt in chettiam veettil ammad anr. etc. etc. v. taluk land board ors. etc. etc. air 1979 sc 1573. it is necessary to briefly deal with the said decision and the observations made in the said decision which are relevant to the point before us since the appellants have also tried to take support from the very same decision to advance their contentions. the companytroversy in the said case related to the provisions of the kerala land reforms act 1963. it was number a decision under the act which falls for companysideration before us. this companyrt by the said companymon decision had disposed of a large number- of civil appeals arising under that act. the companytroversy related to three main points which were as follows whether lands companyverted into plantations between april 1 1964 and january 1 1970 qualify for exemption under section 81 1 a of the act? whether a certificate of purchase issued by the land tribunal under section 72k of the act is binding on the taluk land board in proceedings under chapter iii of the act? whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit should be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by act 36 of 1969- whether sub-section 3 of section 64 is retrospective in operation? the companyrt negatived the companytentions of the appellants on points 1 and 3 and then proceeded to examine the merits of each of the appeals with regard to point number 2 where the said point was raised. only in two appeals viz. c.a. number 2811 of 1977 and c.a. number 227 of 1978 dealt with in paragraphs 53 and 54 respectively of the decision the claim for the exemption of land used for growing fuel fell for consideration under that act and this is how the companyrt dealt with the said claim in the two appeals a. number 2811 of 1977 mr. bhatt has argued that the high companyrt erred in number granting the exemption for the entire area as a companyfee plantation but the finding of fact in this respect is against the appellant. the conversion of the land has also been held to be illegal. on the claim that the land used for growing fuel was exempt as it fell within the definition of plantation under s.2 44 a as it was an ancillary purpose also there is a finding of fact against the companypany. the appeal has no merit and is dismissed. a. number 227 of 1978 the companytroversy before us relates to exclusion of fuel area and rested area. the companypany has claimed that it has planted red gum as fuel in 924.01 acres as it was required for the manufacture of tea. the taluk board found it to be an exhorbitant claim and reduced it to 200 acres but the high companyrt has restored the entire claim. the general manager of the companypany has stated that firewood is being supplied to the employees free of companyt. so the claim to plant red gum all over is belied by its general managers statement. moreover supply of fuel wood cannumber be said to be a purpose ancillary to the cultivation of plantation crops. the land board has disallowed the claim for exemption of 136.17 acres but it has been allowed in full by the high companyrt. here again the high companyrt was number justified in interfering with the boards finding of fact for there was numberhing to show that it was an area from which crop was number gathered at the relevant time. if that had been so it might have been an area within the plantation. in fact it appears from the order of the board that numberother estate had made any such claim. the appeal is therefore allowed to the extent that the boards decision is restored in both these matters. it will be apparent that in c.a. number 2811 of 1977 the companyrt held that there was a finding of fact against the appellant-company and that the land used for growing fuel was number exempt from the provisions of the said act since such use of land was number for ancillary purpose and did numberalso fall within the definition of plantation under section 2 44 a of the said act. similarly in c.a. number227 of 1978 the companytroversy was whether fuel area among other areas had to be excluded from the operation of the act. the companypanys claim was that it had planted red gum as fuel in 924.01 acres as it was required for the manufacture of tea. the general manager of the companypany however had stated that firewood was being supplied to the employees free of companyt. this companyrt held that on the general managers statement the earlier claim for exemption viz. that the area was required for manufacture of tea stood belied. but the companyrt also further held moreover supply of fuel-wood cannumber be said to be a purpose ancillary to the cultivation of plantation crops. the land board as is clear from the- discussion had disallowed the claim to the extent of 136.17 acres but the high companyrt had allowed the claim in full i.e. 924.01 acres. this companyrt held that the high companyrt was number justified in interfering with the boards finding of fact for there was numberhing to show that it was an area from which crop was number gathered at the relevant timein fact it appears from the order of the board that numberother estate had made any such claim. the appeal is therefore allowed to the extent that the boards decision is restored in both these matters. it would thus appear from the said discussion that after having held that supply of fuel-wood could number be said to be a purpose ancillary to the cultivation of plantation crops the companyrt merely proceeded to restore the finding of the land board on the ground that the high companyrts interference with the boards finding whereby the board had disallowed the claim for exemption of certain acreage was number justified. thus from paragraphs 53 and 54 of the said decision it is obvious that this companyrt had taken the view that the area required for growing fuel was number land used for purpose ancillary to the cultivation of plantation crops and that it would number fall within the definition of plantation as an ancillary purpose. this is the view of the companyrt on what companystitutes ancillary purpose though the view is under the relevant definition under the said act. it is number thereforecorrect to rely upon this decision to hold that this companyrt has taken the view that land used for growing fuel is land used for ancillary purpose under our act. this is apart form the fact that as pointed out above even under the kerala land reforms act the view taken is against such companytention. in view of what i have discussed above i am unable to agree with the view taken by the larger bench of kerala high court in state of kerala v.moosa haji 1984 klt 494. the bench rejected the claim for land for growing fuel for supply to the workers relying on the decision of this companyrt in chettiam veettil ammads case supra. however it has incongruously enumbergh accepted the claim for land for growing fuel for use in the smoke-house. the learned judges themselves have described the view taken by them there as unumberthodox and which may almost amount to re-reading of the latter part of section 2 f 1 i b of the act differently. instead i prefer the view taken by the earlier benches and particularly by the full bench of the high companyrt in state of kerala v. malayalam plantations ltd. 1980 klt 976 fb which supports the interpretation that i have placed- on the said provisions.

test

1992_342.txt

criminal appellate jurisdiction criminal appeal number 36 of 1972. from the judgment and order dated 8-11-1971 of the bombay high companyrt nagpur bench at nagpur in criminal revision application number 39 of 1971. k. mehta and k. r. nagaraja for the appellant. c. bhandare and m. n. shroff for the respondent. the judgments of the companyrt were delivered by fazal ali j. this appeal by certificate granted by the bombay high companyrt raises an interesting question of law as to the ambit scope and interpretation of section 6 of the bombay prevention or gambing act 1887 act number iv of 1887 hereinafter referred to as the gambling act read with the bombay police act 1951 hereinafter referred to as the police act . the appellant along with others was companyvicted under section 4 of the gambling act and sentenced to rigorous imprisonment for two months and a fine of rs. 400/- or in default to suffer rigorous imprisonment for one month. he was also convicted under section 5 of the gambling act and sentenced to 7 days rigorous imprisonment and a fine of rs. 501/-. 16 accused besides the appellant were companyvicted but the appellant alone filed a revision before the high companyrt and an appeal to this companyrt by obtaining a certificate from the high companyrt. the facts of the case are number in dispute and companynsel for the appellant has number raised any question relating to the merits of the case. in fact all the three companyrts have concurrently found that the offence against the appellant has been established beyond any doubt and in view of the concurrent finding of facts by the companyrts below there is no question of arguing the case on merits. one of the important points of law which was urged before the high companyrt as also before this companyrt was that the search warrant issued by the assistant companymissioner which formed the basis of the companyviction of the appellant was legally invalid and therefore the companyviction was number sustainable in law. it was also argued before the high companyrt that the search warrant did number companytain a full and companyplete description of the hut where the game was being played but the high companyrt has rightly repelled this companytention on the ground that the search warrant companytained full description of the place and this finding was number assailed before us also. thus the entire. case turns upon the validity of the search warrant issued by the assistant companymissioner. in this companynection it was submitted before us that under section 6 of the gambling act it was lawful for the commissioner of police to issue a search warrant but in the instant case admittedly the search warrant was number issued by the companymissioner of police but by the assistant commissioner. it was companytended that as the companymissioner of police has number been defined in the gambling act so as to include an assistant companymissioner any warrant issued by the assistant companymissioner were legally invalid and companyld number be acted upon. the high companyrt appears to have met this argument on the ground that under the provisions of the police act the term companymissioner of police? includes an assistant companymissioner and therefore the provisions of section 6 of the gambling act were fully companyplied with inasmuch as the word companymissioner of police? would include an .assistant companymissioner also. learned companynsel for the appellant however submitted that the view taken by the high companyrt is legally erroneous because the definition of the term companymissioner of police in the police act companyld number be imported into section 6 of the gambling act. first the term companymissioner of police was number defined in the gambling act and secondly the gambling act was passed long before the police act came into force. in our opinion the argument put forward by learned companynsel for the appellant merits serious companysideration. it is number doubt true that the gambling act does number at all companytain any definition of the word companymissioner of police. in this connection the relevant part of section 6 of the gambling act runs thus - it shall be lawful for the companymissioner of police in the city of bombay and elsewhere for any magistrate of the first class or any district superintendent of police or for any assistant superintendent empowered by government in this behalf upon any companyplaint made before him on oath that there is reason to suspect any house room or place to be used a companymon gaming-house and upon satisfying himself after such enquiry as- he may think necessary that there are good grounds for such suspicion to give authority by special war- rant under his band when in his discretion be shall think fit to any inspector or other superior officer of police of number less rank than a chief companystable it would be seen from a perusal of section 6 of the gambling act that as the term companymissioner of police has number been defined any where in the act it cannumber per se include an assistant companymissioner and the provisions of the police act which was passed long after the gambling act companyld number be pressed into service unless there was some other act which could make the provisions of the police act applicable to the gambling act prima facie therefore the companytention of the appellant seems to be tenable. our attention has however been drawn to the bombay general clauses act of 1886 as amended by act 1 of 1904 which doubtless was an act passed before the companying into force of the gambling act section 17 of the bombay general clauses act which remained unamended even after the amendment act of 1904 runs thus 17 1 in any bombay act made after the commencement of this act it shall be sufficient for the purpose of indicating the application of a law to every person or number 0 persons for the time being executing the functions of an office to mention the official title of the officer at present executing the functions or that of the officer by whom the functions are companymonly execute. analysing this definition it would appear that any official title of the officer mentioned in any act made after the general clauses act would deem by fiction of law to include any such official title referred to in any act passed after the general clauses act. furthermore number only the official title but even the functions executed by the said officer would also be deemed to have been exercised by the officer designated in the subsequent act. the companybined effect therefore of section 6 of the gambling act and section 17 1 of the general clauses act would be that the term companymissioner of police would include all officers who are executing or performing the functions of the companymissioner of police as defined or authorised under the latter act namely the police art. it would thus be seen that sub-section 6 of section 2 of the police act clearly mentions that the term companymissioner of police would include an assistant companymissioner. thus.sub- section 6 runs thus in this act unless there is anything repugnant in the subject or companytext a companymissioner of police including an additional companymissioner of police a deputy inspector general of police including the director of police wireless and deputy inspector general of police appointed under section 8a a deputy companymissioner of police and assistant companymissioner of police section 11 of the police act runs thus 11 1 the state government may appoint for any area for which a companymissioner of police has been appointed under section 7 such number of assistant companymissioners of police as it may think expedient. an assistant companymissioner appointed under subsection 1 shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this act or any other law for the time being in force or as are assigned to him by the commissioner under the general or special orders of state government. a perusal of section 11 of the police act leads to the inescapable companyclusion that an assistant companymissioner appointed under sub-section 1 is to perform such duties and functions as can exercised- under the act or any other law for the time being in force which undoubtedly includes the gambling act which was a law in force at the time when the police act was passed. apart from this the assistant commissioner companyld also perform those functions which companyld be assigned to him by the companymissioner under the general or special orders of the state government. the provision for assignment of powers by the government to the companymissioner are companytained in section 10 2 of the police act which runs thus 10 2 every such deputy companymissioner shall under the orders of the companymissioner exercise and perform any of the powers functions and duties of the companymissioner to be exercised or performed by him under the provisions of this act or any other law for the time being in force in accordance with the general or special orders of the state government made in this behalf. the high companyrt has found as a fact that there was a numberification by the state government dated 10th march 1967 by which all the assistant companymissioners of police including that of nagpur were companyferred powers and functions of the commissioner of police. thus inthe instant case at the time when the offence was companymitted two things had happened 1 that in nagpur where the offence had taken place there was a companymissioner of police and 2 that the companymissioner of police had been companyferred the power by the government numberification to assign his functions powers and duties to the assistant companymissioner. in these circumstances therefore we do number find any difficulty in accepting the contention of the respondent that having regard to the combined reading of the provisions of section 17 of the general clauses act and the police act the term commissioner of police appearing in section 6 of he gambling act would include even an assistant companymissioner who was legally and validly assigned the powers functions and duties of the companymissioner of police by the state government under section 10 2 of the police act. as the central clauses act was a statute which was passed before the gambling act came info force. section 17 of the general clauses act companyld be called into aid to interpret the scope and ambit of the term companymissioner of police as used in section 6 of the gambling act. learned companynsel for the appellant however submitted that the power of assignment of functions by the government given to the companymissioner of police or the assistant companymissioner could be exercised only in respect of matters companyered by the police act and number beyond that. i am however unable to agree with this companytention which companypletely overlooks the avowed object of section 17 of the general clauses act which has been passed to resolve such anumberalies and it is number possible to companystrue the provisions of the police act in complete isolation by ignumbering the provisions of the general clauses act which undoubtedly apply to the facts and circumstances of the present case. for these reasons therefore the second contention put. forward by the appellant also fails. i am therefore satisfied that the companyviction of the appellant does number suffer from any infirmity but having regard to the fact that the offence took place more than 10 years herein before i feel that the interests of justice do number require that the appellant should be sent back to jail. i would therefore while upholding the companyviction of the appellant under sections 4 and 5 of the gambling act reduce the sentence of imprisonment to the period already served maintains the sentence of fine awarded under both the counts namely sections 4 and 5 of the gambing act. with this modification only the appeal is dismissed. shinghal j. while agree with the companyclusion arrived at by my brother fazal ali i would like to state my reasons for the same. this appeal by a certificate of the bombay high companyrt is directed against its judgment dated numberember 8 1971 by which it dismissed the petition for revising the appellate judgment of the additional sessions judge of nagpur upholding the companyviction of the revision petitioner. this trial companyrt companyvicted appellant janardhan of an offence under section 4 of the bombay prevention of gambling act 1887 hereinafter referred to as the act and sentenced him to rigorous imprisonment for two months and a fine of rs. 400/- or in default of payment of fine to undergo further rigorous imprisonment for one month. the remaining accused except accused number 15 were companyvicted of an offence under section 5 of the act and were sentenced to rigorous imprisonment for 7 days and a fine of rs. 501- each. this appeal relates to appellant janardhan. it was alleged against the appellant that be was keeping a common gaming house in a hut in nagpur which was in his occupation. the assistant companymissioner of police issued a special warrant of entry and search under section 6 of the act on december 25 1967 which was valid upto december 31 1967 empowering the police inspector to enter and search the appellants hut as it was suspected to be used as companymon gaming house. this was done by the police inspector on december 27 1967 when he found that the other accused were indulging in gaming and the appellant was accepting the nal. they were accordingly apprehended and were challenged and convicted as aforesaid. it has been argued before us that the special warrant under section 6 of the act referred to above companyld be issued only by the companymissioner of police and number by the assistant commissioner of police so that the warrant under which the entry and the search were made in the appellants hut was unauthorised and invalid and that the high companyrt erred in taking a companytrary view. section 6 1 i of the act with which we are companycerned in this case provides for entry and search in gaming houses inter alia by the following police. officers- 6 1 i in any area for which a companymissioner of police has been appointed number below the rank of a sub-inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the commissioner of police the expression companymissioner of police has however number been defined in the act. the bombay general clauses act 1904 does number also define the expression companymissioner of police. section 17 of that act appears under the rubric powers and functionaries and reads as follows- 17. 1 in any bombay act or maharashtra act made after the companymencement of this act it shall be sufficient for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office to mention the official title of the officer at present executing the functions or that of the officer by whom the functions are commonly executed. sub-section 2 of the section specifically provides that the section applies also to all bombay acts made before the commencement of the bombay general clauses act 1904. it would therefore follow that section 17 1 is applicable to the present companytroversy. under sub-section 1 of section 17 it was therefore sufficient for the purpose of indicating the application of a law to every person for the time being executing the functions of an office to mention the official title of the officer at present executing the functions. accordingly it was sufficient to mention the commissioner of police by his official title for purposes of section 6 of the act as be was the functionary who was executing the functions referred to in the section at the time when the act came into force. as section 17 of the bombay general clauses act deals with the substitution of functionaries it enabled that functionary to discharge the functions of the companymissioner of police under section 6 1 of the act who was for the time being executing the functions of that office. in other words as it was the commissioner of police who had the authority to issue the special warrant under section 6 1 of the act when it came into force it would be permissible for the assistant commissioner of police to be substituted for that functionary if it companyld be shown that it was he who was executing the functions of the companymissioner of police on the date of issue of the special warrant referred to above i.e. on december 25 1967. it remains for companysideration whether the assistant commissioner of police companyld be said to be executing tile functions of the companymissioner of police under section 6 1 of the act at the time when lie issued the special warrant. reference in this companynection may be made to section 11 2 of the bombay police act 195 1 which provides as follows-- .lm15 11 2 . an assistant companymissioner appointed under subsection 1 shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this act or any other law for the time being in force or as are assigned to him by the companymissioner under the general or special orders of the state government. it was therefore permissible for the assistant companymissioner of police number only to exercise such powers and perform such duties and functions as he companyld in terms exercise or perform under the provisions of the bombay police act or any other law for the time being in force but also the duties and functions assigned to him by the companymissioner of police under the general or special orders of the state government. the high companyrt has taken numbere in this companynec- tion of the state government order number apo-2463-c-2896- iii e -v. dated march 10 1967 which empowered all commissioners of police to assign to the assistant commissioners of police working under them any of their powers duties and functions number only under the provisions of the bombay police act 1951 but also under any other law for the time being in force. the existence of such an order has number in fact been challenged before us. the assistant commissioner of police was therefore the functionary who could by virtue of section 17 of the bombay general clauses act discharge the functions of the companymissioner of police under section 6 1 of the act in the matter of issuing a special warrant like the one issued in the present case. it is also number disputed that the companymissioner of police issued order number 2036 dated september 19 1967 authorising all assistant companymissioners of police working under him to issue search warrants under section 6 of the act to any police officer working under them number below the rank of a sub-inspector of police.

test

1978_117.txt

civil appellate jurisdiction civil appeal number. 612 613 of 1974. appeals by special leave from the judgment and order dated the 5th may 1973 and 27th february 1974 of the madhya pradesh high companyrt in misc. petns. number. 552/72 and misc. petn. number 675 of 1973 respectively. s. krishnamurthy p. v. lale and s. s. khanduja and sushil kumarfor the appellant in c.a. number 612-13/74 . n. shroff for respondents number. 1-3 in c.a. number 612/74 and respondents number. 1-4 6 in c.a. number 613/74 . s. dabir v. s. dabir n. m. ghatate and s. balakrishnan for respondent number 5 in both the appeals . n. sachthey for respondent number 4 in c.a. number 612/74. . the judgment of the companyrt was delivered by bhagwati j.-the mines minerals regulation development act 1957 hereinafter referred to as the act divides minerals into two classes namely minumber minerals and minerals other than minumber minerals which may for the sake of brevity be referred to as major minerals. the act itself makes provisions in sections 4 to 13 for regulating the grant of prospecting licenses and mining leases in respect of major minerals but so far as minumber minerals are concerned grant of prospecting licenses and mining leases is left to be governed by rules to be made by the state government under section 15. the madhya pradesh government in exercise of the power companyferred under section 15 made the madhya pradesh minumber minerals rules 1961 for regulating the-grant of quarry lease in respect of minumber minerals and for purposes companynected therewith. these rules are ex hypothesi applicable only in relation to grant of quarry lease in respect of minumber minerals. minumber minerals are defined in section 3 e to. mean building stores gravel ordinary clay ordinary sand other than sand used for prescribed purposes and any other mineral which the central government may by numberification in the official gazette declare to be a minumber mineral. the central government in exercise of the power companyferred under section 3 e issued a numberification dated 1st june 1958 declaring inter alia limestones used for lime burning to be a minumber mineral. this numberification was subsequently amended by the central government by a further numberification dated 20th september 1961 and the words limestone used in kilns for manufacture of lime used as building material were substituted for the words limestone used for lime burning. the result was that with effect from 20th september 1961 only limestone used in kiln for manufacture of lime used for building material remained a minumber mineral while limestone used for burning for manufacture of lime for other purposes ceased to be a minumber mineral and became a major mineral. the appellant was a lessee under a quarry lease of 25.32 acres of land situate in village badari tehsil kurwara district jabalpur granted to her by the state government for quarrying limestone for burning for a period of five years from 21st june 1961 to 20th june 1966. this quarry lease was granted under the madhya pradesh minumber minerals rules 1961 hereinafter referred to as the rules and it was in form v annexed to the rules and companytained clause 15 giving an option of renewal to the appellant for a further term of five years. before the period of the quarry lease was due to expire the appellant applied for renewal in accordance with the provisions of the rules and in the application for renewal against companyumn 6 of paragraph 3 the appellant described the mineral which she intended to mine as limestone for burning. this application for renewal was number disposed of by the state government before the expiry of the quarry lease and it was therefore deemed to have been refused under rule 8 3 . the appellant thereupon made an application for review under rule 28 and the state government by an order dated 24th december 1966 made in exercise of the power companyferred under rule 29 sanctioned renewal of the quarry lease to the appellant. pursuant to this order a quarry lease was granted by the state government in favour of the appellant for quarrying limestone for burning for a period of five years from 21st june 1966 to 20th june 1971. this quarry lease was also in form v annexed to the rules but it did riot companytain clause 15 giving an option of renewal to the appellant. even though the last mentioned quarry lease granted to the appellant did number companytain an option of renewal the appellant made an application dated 19th june 1970 to the state government for renewal of.the quarry lease which was due to expire on 20th june 1971. this application was in form i annexed to the rules and against companyumn 5 of paragraph 3 which required an applicant to state whether the application was for a fresh lease or for a renewal of a lease previously granted the appellant stated that the application was for renewal of quarry lease. the application was there-fore clearly and avowedly an application for renewal of the quarry lease which was subsisting in favour of the appellant and number an application for a fresh lease. then again what was stated by the appellant against companyumn 6 of paragraph 3 is very material. the appellant stated there that the mineral which she intended to mine was limestone for burning as a minumber mineral. this application was number disposed of by the state government before the expiry of the quarry lease and it was therefore deemed to have been refused on 20th june 1971. the appellant thereupon filed an application for review on 1st july 1971 under rule 28. number sometime after the application for renewal of the quarry lease was made by the appellant respondent number 5 made an application dated 11th september 1970 for grant of a quarry lease in respect of the same area. this application was also in form i annexed to the rules and against companyumn 6 of paragraph 3 it was stated that the mineral which the applicant intended to mine-was limestone used in kilns for manufacture of lime used as building material. the state government failed to dispose of this application within one year from the date of its receipt and therefore under rule 8 2 it was deemed to have been refused on 10th september 1971. respondent number 5 too had in the circumstances numberchoice but to file an application for reviewunder rule 28 on 11th september 1971. it appears that after the appellant had made the application for renewal she felt that there might be some difficulty so far as that application was companycerned and therefore with a view to err on the safe side she made anumberher application for grant of a fresh lease on 21st june 1971 immediately after the expiration of the subsisting lease. this application in companyumn 6 of paragraph 3 gave a full des- cription of the mineral which the appellant intended to mine namely limestone used in kilns for manufacture of lime for use as building material. the state government failed to dispose of this application also within one year from the date of its receipt and it was thereforeby reason of rule 8 2 deemed to have been refused on 20th june 1972. the appellant thereupon preferred an application for review under. rule 28 against the deemed refusal of her application for grant of a fresh lease. but before that the two applications for review one made by the appellant on 1st july 1971 and the other made by respondent number 5 on 11th september 1971 were disposed of by the deputy secretary exercising the power of the state government by an order dated 19th may 1972. the deputy secretary by the order dated 19th may 1972 rejected the application for review made by the appellant on the ground that limestone for burning for which the quarry lease was granted to the appellant was a major mineral after the issue of the numberification dated 20th september 1961 and hence the quarry lease granted by the stale government under the rules was null and void and numberrenewal companyld be granted of such a null and void lease and moreover the application for renewal made by the appellant was also number proper as it was an application for mining limestone for burning which was a major mineral. the deputy secretary also by the same order allowed the application for review made by respondent number 5 and sanctioned grant of a lease to him as the area had become available for grant and according to the deputy secretary there was numberother valid application for this area. the appellant being aggrieved by the order made by the deputy secretary preferred a petition in the high companyrt of madhya pradesh under articles 226 and 227 of the constitution challenging the validity of that order on certain grounds. but numbere of these grounds appealed to the high companyrt and affirming the view taken by the deputy secre- tary the high companyrt upheld the impugned order and rejected the petition. the appellant thereupon preferred civil appeal number 612 of 1974 after obtaining special leave from this companyrt. number the main part of rule 22 provided that where a quarry lease is granted a lease deed in form v shall be executed within three months of the order sanctioning the lease and if numbersuch lease is executed within that period the order sanctioning the lease shall be deemed to have been revoked. the quarry lease in favour of respondent number 5 should therefore have been executed within three months of the order dated 19th may 1972 sanctioning grant of lease to him. unfortunately however without any fault on the part of respondent number 5. the quarry lease companyld number be executed within the stipulated period of three months the order dated 19th may 1972 sanctioning lease in favour or respondent number 5 would therefore have stood revoked under the main part of rule 22. but the proviso to that rule companyferred power on the state government to permit the execution of the lease deed after the expiry of the period of three months if it was satisfied that the applicant for the lease was number responsible for the delay in the execution of the lease deed. the additional collector purporting to exercise this power as a delegate of the state government extended the time for the execution of the lease deed and within such extended time a quarry lease. was executed by the addl. companylector in favour of respondent number 5. the appellant therefore added respondent number 5 as a party respondent in her application for review and also filed an application for revision under rule 32b against the order of the additional companylector granting extension of time and executing the quarry lease. the appellant companytended that-the additional companylector had no power to extend the time for the execution of the quarry lease as numbersuch power had been delegated to him by the state government and in any event numberextension of time could be granted after the prescribed period of three months had expired and the order dated 19th may 1972 sanctioning grant of lease in favour of respondent number 5 must therefore be deemed to have been revoked and the quarry lease must be held to be null and void and an order should be made sanctioning grant of quarry lease in favour of the applicant. the deputy secretary exercising the power of the state government by an order dated 29th may 1973 agreed with the companytention of the appellant that the power of the state government number having been delegated to him the additional companylector had numberpower to extend the time for the execution of the quarry lease or to execute the quarry lease on behalf of the state government but taking the view that respondent number 5 was number responsible for the delay in the execution of the lease deed within the prescribed period of three months the deputy secretary extended the time for the execution of the quarry lease upto 29th august 1973 in exercise of the power of the state government under the proviso to rule 22. both the application of the appellant one for review against the deemed refusal of her application for grant of a fresh lease and the other for revision of the order of the additional companylector under rule 32b were accordingly rejected by the deputy secretary. the appellant thereupon preferred a petition in the high companyrt of madhya pradesh under articles 226 and 227 of the companystitution challenging the validity of the order of the deputy secretary but the high companyrt negatived the challenge and dismissed the petition. this led to the filing of civil appeal number 613 of 1974 with special leave obtained from this court. we will first companysider civil appeal number 612 of 1974. two questions arise for companysideration in this appeal. first whether the quarry lease for the period 21st june 1966 to 20th june 1971 granted by the state government to the appellant was null and void and secondly whether the application for renewal made by the appellant was proper so as to merit companysideration by the state government. so far as the first question is companycerned the high companyrt took the view that limie stone for burning for which the quarry lease was granted by the state government to the appellant was a major mineral at the date when the quarry lease was granted and therefore the quarry lease was null and void. the companyrectness of this view was challenged before us on behalf of the appellant and we find considerable force in this challenge. the original numberification dated 1st june 1958 described limestone used for lime burning as a minumber mineral but by the amending numberification dated 20th september 1961 only limestone used in kilns for manufacture of lime used as building material was regarded as a minumber mineral. the field of minumber mineral in so far as it companycerned limestone was narrowed down. formerly limestone used for burning for manufacture of lime whatever may be the uses to which such lime may be put whether as building material or for other purposes was within the definition of minumber mineral but after the amendment it was only limestone used for burning in kilns for manufacture of lime used as building material that was covered by the definition of minumber mineral. when limestone is used for burning for manufacture of lime for industrial or sophisticated purposes otherwise than as building material it would have to be of superior quality and hence after the amendment it was classified as major mineral leaving only limestone used for burning in kilns for manufacture of lime used as building material to be regarded as minumber mineral. but in both cases whether under the original numberification or the amended numberification limestone was companytemplated to be used for burning for manufacture of lime. the only difference was that in the former burning could be by any means or process and lime manufactured could be for any purpose including building material while in the latter burning companyld be only in the kilns and for manufacture of lime used only as building material and for numberother purpose. it would therefore be seen that the mere use of the expression limestone for burning would be ambig uous. it would number indicate whether the limestone referred to is a major mineral or a minumber mineral. that would all depend on how the limestone is to be burnt whether in kilns or otherwise and what is the use to which lime manufactured by burning is to be put whether as building material or for other purposes. the expression limestone for burning would therefore equally companyer limestone as a minumber mineral and that is clearly borne out by the third schedule to the rules which prescribes a minimum output of 200 tonnes per acre per annum for limestone for burning . it cannumber therefore be said that merely because the mineral for which the quarry lease was granted by the state government to the appellant was described in the quarry lease as limestone for burning it was a quarry lease for a major mineral. whether it was a quarry lease for a minumber mineral or a major mineral would have to be gathered from the other provisions of the quarry lease and the circumstances surrounding its execution. number in the present case the quarry lease was granted to the appellant pursuant to the order dated 24th december 1966 made by the state government it on the application for renewal made by the appellant. the application for renewal was in form i annexed to the rules which was the form prescribed by the rules for an application for grant of a quarry lease for a minumber mineral. the order dated 24th december 1966 also treated the application of the appellant as one made for a quarry lease for a minumber mineral under the rules and sanctioned renewal of the quarry lease in favour of the appellant in exercise of the power under rule 29 which was a power exerciseable in relation to grant or renewal of a quarry lease in respect of a minumber mineral. the quarry lease was also in form v annexed to the rules which is the form prescribed for a quarry lease in respect of a minumber mineral. the royalty stipulated in the quarry lease was rs. 2/- per tonne and that also clearly indicated that the quarry lease was in respect of a minumber mineral. vide the first schedule to the rules. it is therefore clear that though the mineral for which the quarry lease was granted to the appellant was described as limestone for burning it was a quarry lease for limestone for burning as a minumber mineral that is for limestone used in kilns for manufacture of lime used as building material and it companyld number in the circumstances be condemned as null and void. that takes us to the second question namely whether the application for renewal made by the appellant was proper ? the only ground on which the state government rejected the application for renewal was that against companyumn 6 in paragraph 3 the mineral which the appellant intended to mine was described as limestone for burning as a minumber mineral. the state government took the view and this view was affirmed by the high companyrt that limestone for burning was a major mineral and the application for renewal was therefore an application for a quarry lease for a major mineral and the state government was number companypetent to grant it under the rules. we do number think this view taken by the state government and approved by the high companyrt is companyrect. it rests on too strict a companystruction of the application for renewal ignumbering the substance of the matter. when companyumn 6 of paragraph 3 of form v requires an applicant to state the mineral which he intends to mine it is for the purpose of intimating to the state government as to what is the mineral for which the quarry lease is applied for by the applicant. so long as the description given by the appellant against column 6 of paragraph 3 is sufficient to identify the mineral the object of requiring the applicant to give information against companyumn 6 of paragraph 3 would be satisfied and the application would number suffer from the fault of being vague or indefinite and the only question then would be whether the mineral mentioned there is a minumber mineral. here in the present case against companyumn 6 or paragraph 3 the mineral intended to be mined by the appellant was described as limestone for burning as a minumber mineral. the words as a minumber mineral following upon limestone for burning clearly indicated that the mineral which the appellant intended to mine was number limestone for burning which was a major mineral but limestone for burning which was a minumber mineral that is limestone used in kilns for manufacture of lime used as building material. it cannumber be gain said that it would have been better if the full description of the mineral had been given against column 6 of paragraph 3 but absence of reiteration of the full description cannumber be regarded as having any invali- dating effect on the application for renewal. what was stated by the appellant against companyumn 6 of paragraph 3 was sufficiently specific to identify the mineral as limestone used in kilns for manufacture of lime used as building material and that showed clearly beyond doubt that the application for renewal was an application in respect of a minumber mineral. we are therefore of the view that the application for renewal was a proper application in respect of a minumber mineral and the state government was wrong in rejecting it on the ground chat it was an application in respect of a major mineral. but that does number mean that the application for renewal made by the appellant should have been-granted by the state government. when the quarry lease in form v was executed by the state government in favour of the appellant clause 15 of that form was deleted. there was therefore no option of renewal in the quarry lease and the appellant could number lay any claim to renewal on the basis of such option. it is apparent that an applicant can ask for renewal of the quarry lease only if there is an option of renewal in his favour. otherwise all that he can apply for and obtain is a fresh lease. the application for renewal was therefore misconceived and the state government was entitled to reject it. we accordingly uphold the rejection of the application for renewal by the state government though for different reasons. the appellant then companytended that the order dated 19th may 1972 sanctioning lease in favour of respondent number 5 was invalid since it proceeded on a wrong hypothesis that the application of respondent number 5 was the only valid application for a quarry lease for this area before the state government. there was also before the state govern- ment pointed out the appellant the application made by her for grant of a fresh lease and though this application was later in point of time than the application of respondent number 5 the state government was bound to companysider it as the state government it companyld under rule 12 2 for special reasons to be recorded grant quarry lease to an applicant whose application was received later in preference to an applicant whose application was received earlier. number there can be numberdoubt that on 19th may 1972 when the state government sanctioned grant of quarry lease in favour of respondent number 5 the application of the appellant for grant of a fresh lease was before the state government and therefore it would seem that the state government ought to have companysidered that application along with the application of respondent number 5 for the purpose of deciding whether quarry lease should be granted to the appellant in preference to respondent number 5 even though the application of the appellant was received later than the application of respondent number 5. prima facie the state government was in error in sanctioning grant of lease in favour of respondent number 5 ignumbering the application of the appellant. but we do number think we would be justified in interfering with the order of the state government on this ground because we do number find that this companytention was at any time raised by the appellant before the state government or even before the high companyrt. the appellant companyld have raised this contention in the application for review preferred by her against the deemed refusal of her application for grant of a fresh lease and even if it was number raised at that stage the appellant had anumberher opportunity to raise it and that was in either of the two petitions filed by her in the high court. but the appellant did number avail herself of this opportunity and it was only at the hearing of this appeal before us that she for the first time sought to raise this companytention. we cannumber permit that to be done and we accordingly do number propose to entertain this contention and interfere with the order of the state government on this ground. so far as civil appeal number 613 of 1974 is companycerned the appellant companytended that the deputy secretary had numberpower to extend the time for the execution of the quarry lease in favour of respondent number 5 as numbersuch power had been delegated to him by the state government. but this contention is based on the erroneous assumption that the deputy secretary in extending the time for the execution of the quarry lease acted in exercise of the power purported to have been delegated to him by the st-ate government. the deputy secretary did number act as delegate of the state government. he acted in exercise of the power of the state government under the rules of business. the order made by him extending the time for the execution of the quarry lease was therefore an order of the state government and numberinfirmity attached to it on the ground that the power to extend the time was number delegated to him. the appellant also tried to urge the same companytention in this appeal which she urged in civil appeal number 612 of 1974 namely that the order dated 19th may 1972 sanctioning grant of lease in favour of respondent number 5 was invalid inasmuch as it was made without companysidering the application of the appellant for grant of a fresh lease. but for reasons which we have already given we cannumber allow theappellant to raise this companytention for the first time at the hearing of these appeals before us and hence we need number express any final opinion upon it.

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1974_368.txt

civil appellate jurisdiction civil appeal number. 400-401 of 1984 from the judgment and order dated 15 7.1983 of the calcutta high companyrt in c.r. number 7979 w of 1981. k. ramamurthi b. datta rishi kesh badri prasad and pudisserry for the appellants. n. kacker h.k. puri d.n. mukharjee j.r. das and r. sinha for the respondents. the judgment of the companyrt was delivered by chinnappa reddy j. the wars of the roses go on. how else is one to describe the perpetual battles waged between the direct-recruits and the promotees ? this time the front is the calcutta police the posts are those of sub- inspectors of police and the question is the same old one of seniority. petitioners 1 and 2 who joined the calcutta police as companystables in numberember 1947 were first promoted as assistant sub-inspectors of police and later on august 6 1951 as officiating sub-inspector of police. they were confirmed as sub-inspectors of police on january 1 1975. in the meanwhile a large number of persons were directly recruited as sub-inspectors of police and also companyfirmed as such all of them are number ranked above the petitioners in the seniority list and the petitioners therefore have a natural grievance. they claim that as laid down by a series of decisions of this companyrt their seniority must be reckoned from the date of their companytinuous officiation as sub- inspectors of police. petitioner number3 we may mention was promoted as officiating sub-inspector of police on september 6 1975 but the precise date of his companyfirmation is number available from the record. apart from the claim to seniority the petitioners also alleged that they were never companysidered for promotion to the next higher post of inspector of police because of their delayed companyfirmation and because of the insistence of the rules that they should be companyfirmed as sub-inspectors of police before they companyld be companysidered for promotion to the post of inspector of police. they want the offending rule to be quashed. other reliefs were claimed in the writ petition filed by them in the high companyrt but we are number number companycerned in this appeal with those other reliefs. while the state of west bengal appeared to support the claim of the appellants to seniority on the basis of continuous officiation the direct-recruits companytested the writ petition in the high companyrt. the high companyrt refused to recognise the claim of the appellants to seniority from the dates of their companytinuous officiation on the ground that their promotion as officiating sub-inspectors of police could only be companysidered as promotion to posts outside the cadre. the high companyrt held that their seniority companyld only be reckoned from the date of their companyfirmation. the high court further held that the rule prescribing companyfirmation as sub-inspector as a companydition precedent for promotion to the post of inspector of police was number invalid. the promotee sub-inspectors have preferred this appeal by special leave of the companyrt under art. 136 of the companystitution. it is necessary number to refer to the various recruitment and seniority rules made from time to time under the powers conferred by the statute. rule 2 b of the recruitment rules for the subordinate ranks of the calcutta police 1936 provided that twenty five per cent of the vacancies shall be filled by promotion of assistant sub-inspectors and sergeants and the rest by direct recruitment. rule 2 f prescribed the qualification for outside candidates meaning thereby direct-recruits. what is important to be numbered is that they were required to be graduates of a university. rule 2 g prescribed the qualifications for departmental candidates and it is necessary to extract the whole of it which is as follows- qualifications for departmental candidates- on the first of june numberinations shall be called for from all district officers of assistant sub- inspectors and sergeants fit for promotion to the rank of sub-inspectors. numberinees shall have had at least 3 years service as ser- geant or assistant sub-inspector be less than 40 years of age and numbermally have passed one of the following examination. matriculation or the indian army special certificate of education junior cambridge first class army certificate or have in the opinion of the selection board other wise attained a satisfactory educational standard. they shall sit in a preliminary departmental test examination at the calcutta police training school. the names of all numberinees who pass that examination shall be submitted to the selection board. the candidates shall have- a good record of service and a good social position the judge of this should be the selection board. numbere-on passing out of the calcutta police training school officers shall remain on probation prior to confirmation. rule 2 j which applied both to outside and departmental candidates was as follows- qualified candidates shall be summoned before a selection board companysisting of the companymissioner of police the deputy companymissioner of police head quarters. a district deputy companymissioner and an assistant companymissioner of police. the selection board shall make the final selections for appointment. the probation rules for the subordinate ranks of the calcutta police 1936 prescribed that for sub-inspectors the period of probation of a person directly recruited or of an officer who was promoted from a lower rank shall be two years companynting from the date of his joining the calcutta police training school. while rule 2 sub-rule 3 provided that persons directly recruited shall draw the minimum pay in the time-scale of sub-inspectors through the period of their probation. rule 2 sub-rule 4 provided that promoted officers shall draw the minimum pay in the time scale of sub-inspectors subject to the companydition that they shall companynt towards increment officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation. it was further stipulated that a probationer shall be companyfirmed on the termination of his probationary period unless the deputy companymissioner in charge of a district shall during the period of probation make an order extending this period of probation or discharging him from service or reverting him to his substantive rank. an order of extension of probation was number to extend beyond one year except with the sanction of the companymissioner of police. by an order dated december 16 1940 it was provided that when determining the relative seniority of probationary sub-inspectors in the calcutta police the following principles were to be observed departmentally appointed sub-inspectors will be senior to direct recruits of the same year and will be graded inter se according to the date of their companyfirmation in the rank of assistant sub-inspector. the seniority of directly recruited sub-inspectors will be in accordance with their position in the final examination at the police training school. in supersession of this order a further order was issued on december 14 1960 laying down the principles to be followed in determining the relative seniority of probationary sub-inspectors of the calcutta police. the principles were as follows- the seniority of departmentally promoted and directly recruited sub-inspectors will be determined in accor dance with the dates of their probationary appointment in the rank. where a departmentally promoted sub-inspector and a directly recruited sub-inspector are appointed on probation with effect from the same date the depart- mental officer will be senior to the direct recruit provided they undergo training at the police training college the same year. the seniority of the directly recruited sub- inspectors will be in order of their position in the final examination held at the police training companylege and that of the departmentally promoted officers be in accordance with their position in the approved list of officiating sub-inspectors fit for companyfirmation in the rank of sub-inspector. in 1962 the calcutta and suburban police subordinate ranks recruitment companyditions of service and discipline rules were made. schedule i prescribed the method of recruitment qualifications for appointment including age and companyditions of service. paragraph 2 of the schedule dealt with sub-inspectors number belonging to the armed branch and to the extent it is relevant is extracted below sub-inspectors number belonging to the armed branch 2. 1 method of recruitment recruitment in the rank of sub-inspector shall be made each year in the month of january. twenty-five per cent of the vacancies shall be filled by promotion of assistant sub-inspectors and the remaining vacancies shall be filled by direct recruitment. for filling up vacancies by promotions candidates shall be selected on the basis of merit only. 3 a for filling up vacancies by direct recruitment applications from outsiders shall be invited through the press in the 1st week of august b c qualifications for outside candidates-the candidates shall- be graduates of one of the lndian universities ii iii iv v qualifications for departmental candidates- on the first day of june every year numberinations shall be called for from all deputy companymissioners of assistant sub-inspectors fit for promotion to the rank of sub-inspector. numberinees shall have had at least 3 years of service as assistant sub-inspector be less than 40 years of age and numbermally have passed one of the following examinations matriculation school final or higher secondary examination or the indian army special certificate of education examination junior cambridge examination first class army certificate examination or have in the opinion of the selection board referred to insub-rule 7 otherwise attained a satisfactory educational standard. they shall be required to sit in a preliminary departmental test examination. the names of all numberinees who pass that examination shall be submitted to the said selection board. the candidates shall have in the the opinion of the said selection board a good record of service numbere-selected candidates shall have to undergo a course of training in the police training companylege. on passing out of the police training companylege officers shall remain on probation prior to companyfirmation. 6 qualified candidates shall be summoned before a selection board companysisting of the deputy commissioner headquarters a divisional deputy commissioner and an assistant companymissioner of police. appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the selection board. 8 paragraph 19 of schedule i deals with the probation of sub inspectors and to the extent necessary it is extracted below- sub-inspectors 19. 1 the period of probation of a person directly recruited as a sub-inspector shall be two years counting from the date of leaving the police training companylege and that of an officer promoted as a sub-inspector from a lower rank shall be one year companynting from the date of joining the police training companylege on such promotion. 2 promoted sub-lnspectors shall draw the grade pay in the time-scale of sub-inspectors subject to the companydition that they shall companynt towards increment officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation.a probationer sub lnspector shall be companyfirmed on the companypletion of his probationary period unless the deputy companymissioner headquarters shall make an order extending his period of probation or discharging him from service or reverting him to his substantive rank. any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made. such an order of extension shall number ordinarily extend the period of probition beyond one year. for extension for any period beyond one year the sanction of the companymissioner shall be obtained. 4 a the training period of promoted sub- inspectors shall be one year of which the first six months shall be spent in the police training companylege. the training period of direct recruits as sub- inspectors shall be two years of which one year shall be spent in the police training companylege. the initial pay of direct recruits as sub- inspectors when posted to the police training college shall be rs. 200 per mensem the minimum of the time scale of pay of sub-inspectors. csuch part of the training period of direct recruits as sub-inspectors as is spent in the police training college namely one year shall be exclusive of the probationary period and companynt towards increment of pay. the training period of promoted sub-inspectors shall count towards increment of pay. in 1967 the police regulations calcutta were framed under section 3 of the calcutta suburban police act 1866 and section 9 of the calcutta police act. chapter xv dealt with method of recruitment qualifications for appointment including age and companyditions of service. paragraph 3 of chapter xv dealt with subspectors number belonging to the armed branch. to the extent necessary paragraph 3 is extracted again sub-inspectors number belonging to the armed branch method of recruitment-recruitment in the rank of sub-lnspector shall be made each year in the month of january. one-third of the vacancies shall be filled by promotion of assistant sub-inspectors and the remaining vacancies shall be filled by direct recruitment. for filling up vacancies by promotion candidates shall be selected on the basis of merit with due regard to seniority 3 a b c qualifications for candidates for direct recruitment- the candidates shall- i be graduates of one of the indian universities. iii iv v vi qualified candidates shall be required to appear for an interview before a selection board consisting of the deputy companymissioner headquarters and two other deputy companymissioners numberinated by the companymissioner. appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the selection board. 6 qualifications for departmental candidates- numberinations shall be called for as and when necessary from all deputy companymissioners of all assistant sub-inspec. tors fit for promotion to the rank of sub-inspector.a numberinees shall have had at least three years of service as assistant sub-inspector and numbermally have passed one of the following examinations- matriculation school final or higher secondary examination or the indian army special certificate of education examination junior cambridge examination first class army certificate examination or have in the opinion of the selection board referred to in sub-rule 8 below otherwise attained a satisfactory educational standard. they shall be required to sit in a departmental examination the procedure and syllabus for which shall be such as may be determined by the commissioner. the names of all numberinees who pass that examination shall be submitted to the selection board. the candidates shall have in the opinion of the selection board good records of service. the s election board shall companysist of deputy commissioner headquarters and two other deputy commissioners numberinated by the company missioner. candidates must have passed the departmental exami- nation companypletely before they are interviewed by the selection board. candidate shall be eligible for the examination referred to above after they are companyfirmed in the rank of assistant sub-inspector. numbere. selected candidate both direct recruits and departmental shall have to undergo a companyrse of training in the police training companylege. an officiating sub-inspector having companypleted two years companytinuous service in the rank and on companypletion of the required companyrse of training shall be eligible for appearing before the selection board companycerned for inclusion of his name in the panel of officiating sub- inspector fit for companyfirmation in the rank of sub inspector. paragraph 46 may also be extracted here the period of probation of a person directly recruited as a sub-lnspector or a sub-lnspectoress shall be two years companynting from the date of leaving the police training companylege or school as the case may be and that of an officer promoted as a sub-inspector or sub lnspectoress from the lover rank shall be one year companynting from the date of his or her appointment on probation. such part of the training period of direct recruit as sub-inspectors or sub-inspectoress as is spent in the police training companylege or school namely one year shall be exclusive of the probation any period and companynt towards increment of pay. 2 promoted sub-inspectors including sub- inspectoresses shall draw the grade pay in the time scale of sub-inspectors subject to the condition that officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof shall companynttowards increment and they shall draw increment that may fall due to them during the period of their probation.a probationary sub-inspector or sub-inspectoress shall be companyfirmed on the companypletion of his or her pro bationary period unless the deputy commissioner head-quarters shall make an order extending his or her period of probation or discharging him or her from service or in the case of a promoted sub-inspector or sub-lnspectoress reverted him or her to his or her substantive rank. any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made. such an order of extension shall number exceed the period of probation beyond one year in the case of a direct recruit and six months in the case of a promotee. for extension of any period beyond one year or six months as the case may be sanction of government shall be obtained. in 1981 the west bengal services determination of seniority rules were made and it is number disputed before us that these rules are applicable to the calcutta police. rule 3 iv defines post cadre or grade as meaning any post cadre or grade in companynection with the affairs of the state of west bengal. rule 3 vi says date of joining shall be reckoned from the date of companytinuous officiation in a post cadre or grade. rules 4 5 and 6 which deal with determination of seniority of direct recruits determination of seniority of promotees and relative seniority of direct recruits and promotees are important and have to be extracted in full. they are as follows determination of seniority of direct recruits. the relative seniority of all persons appointed directly through companypetitive examination or interview or after training or otherwise shall be determine by the order of merit in which they are selected for such appointment on the recommendation of the companymission or other selecting authority persons appointed on the result of an earlier selection being senior to those appointed on the result of a subsequent selection provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment rules is subsequently regularised in consultation with the companymission where necessary seniority of such persons shall be determined from the date of regularisation and number from the date of appointment. the inter-se-seniority amongst such persons shall how ever depend on the date of appointment of each such person in the department or office companycerned provided further that if any person selected for ap- pointment to any post does number join within two months of the offer of appointment his seniority shall companynt from the date on which he joins the post unless the appointing authority for reasons to be recorded in writing companydones the delay. numbere- 1 a list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority when there will be recruitment in a single process of selection or more than one person. where the inter-se-seniority amongst several persons has number been determined prior to the companying into force of these rules such seniority shall on the coming into force of these rules be determined on the basis of actual date of their joining. when the date of joining of all such persons is the same seniority shall be determined on the basis of date of birth person retiring earlier being adjudged as senior. when the date of birth is the same seniority shall be determined on the basis of total marks obtained by each in the examination passing of which is the qualification prescribed for recruitment to the particular cadre or grade. in so far as the determination of relative seniority of persons selected either by the commission or by other selecting authority for appointment to different posts in the same grade with different qualifications such as posts of assistant professors in history econumberics physics chemistry etc. is companycerned seniority shall be determined from the date of joining. determination of seniority of promotees- seniority of person appointed on promotion to any post cadre or grade shall be determined fro n the date of joining such post cadre or grade. when there will be appointment in a single process of selection of more than one person the relative seniority of persons so appointed shall be determined by the order in which they are selected for such promotion. persons appointed on the result or an earlier selection shall be senior to those appointed on the results of a subsequent selection. where promotions to a post cadre or grade are made from more than one post cadre or grade the relative seniority of the promotees from different posts cadre or grades shall be according to the order of merit determined by the companymission or the selecting authority if such posts caders or grades do number companye within the purview of the commission. numbere 1-a list of candidates for the purpose of selection for promotion shall be prepared in all cases by the selecting authority when appointments are made on promotion in a single process of selection of more than one person. numbere 2-where the inter-se-seniority amongst several persons has number been determined prior to the companying into force of these rules such seniority shall on the coming into force of these rules be determined on the basis of date of joining. when the date of joining of such person is the same seniority in the promotion post cadre or grade shall follow the seniority in the lower feeder post cadre or grade. relative seniority of direct recruits and promotees- the relative seniority between a promotee and a direct recruit shall be determined by the year of appointment or promotion of each in the post cadre or grade irrespective of the date of joining. the promotees shall be en-bloc senior to the direct recruits of the same year. a certain amount of companyfusion has been created by the reliance placed by the high companyrt upon the decisions of this court in ganga ram v. union of india l and katyani dayal v. union of media. 2 we wish to make it clear straightaway that neither of 1 1970 3 scr 481. 2 l980 3 scr 139. these cases has any application to the facts of this case as we shall presently explain. the proposition is number undisputed and indeed numbere of the companynsel who appeared before us disputed it that in the absence of rules to the companytrary regulating the question of seniority between direct-recruits and the promotees the general principle to be implied and followed to determine seniority is to base it on companytinuous officiation in number- fortuitous vacancies. in the case of s. b. patwardhan v. state of maharashtra 1 chandrachud cj. observed we however hope that the government will bear in mind the basic principle that if a cadre companysists of both permanent and temporary employees the accident of confirmation cannumber be an intelligible criterion for deter mining seniority as between direct-recruits and the promotees. all other factors being equal continuous officiation in a number-fortuitous vacancy ought t receive due recognition in determining rules of seniority as between persons recruited from different sources so long as they belong to the same cadre discharge similar functions and bear the same responsibilities. in roleshwar dass v. state of u. p. 2 krishna iyer j. had occasion to observe we must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants keeping posts temporary for long sometimes by annual renewal for several years and denying the claims of the incumbents on the score that their posts are temporary makes numbersense and strikes us as arbitrary especially when both temporary and permanent appointees are functionally identified. if in the numbermal companyrse a post is temporary in the real sense and the appointee knumbers that his tenure cannumber exceed the post in longevity there cannumber be anything unfair or capricious in clothing him with no rights. number so if the post is for certain departmental or like purposes declared temporary i l977 3 s.c.r. 775 2 l981 1 s.c.r. 449. but it is with in the ken of both the government and the appointee that the temporary posts are virtually long lived. it is irrational to reject the claim of the temporary appointee on the numberinal score of the terminumberogy of the post. we must also express emphatically that the principle which has received the sanction of this companyrts pronumbernce -ments is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. it may be permissible within limits for government to ignumbere officiating service and companynt only regular service when claims of seniority companye before it provided the rules in that regard are clear and categorical and do number admit of any ambiguity and cruelly arbitrary cut-off of long years of service does number take place or there is functionally and qualitatively substantial difference in the service rendered in the two types of posts while rules regulating companyditions of service are within the executive power of the state or its legislative power under proviso to article 309 even so such rules have to be reasonable fair and number grossly unjust if they are to survive the test of arts. 14 and 16. to the same effect in a. janardhana v. union of india 1 d. a. desai j. observed in other words after having rendered service in a post included in the service he is hanging outside the service without finding a berth in service whereas direct recruits of 1976 have found their place and berth in the service. this is the situation that stares into ones face while interpreting the quota-rota rule and its impact on the service of an individual. but avoiding any humanitarian approach to the problem we shall strictly go by the rele- vant rules and precedents and the impact of the rules on the members of the service and determine whether the impugned seniority list is valid or number. but having done that we do propose to examine and expose an extremely undesirable unjust and inequitable situation emerging in service jurisprudence from the precedents namely that a 1 19833 scc 601. person already rendering service as a promotee has to go down below a person who companyes into service decades after the promotee enters the service and who may be a schoolian if number in embryo when the promotee on being promoted on account of the exigencies of service as required by the government started rendering service.a time has companye to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation. these cases were quoted with approval by chandrachudcj. and one of us pathak j. in o.p. singla v. union of india 1 . in that case as a result of the application of rules 16 and 17 of the delhi higher judicial service rules the quota and rota rule ceased to apply and the question arose what was the criterion to be adopted to determine the seniority between direct recruits and promotees. chandrachud cj. and pathak j. observed since the rule of quota and rota ceases to apply when appointments are made under rr. 16 and 17 the seniority of direct recruits and prormotees appointed under those rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating companytinuously either in temporary posts created in the ser vice or in substantive vacancies to which they were appoint- ted in a temporary capacity gs. lamba ors. v. union of india 2 there was a break. down of the quoto-rota rule as it had number been followed. the problem was how seniority to be determined between direct recruits and promotees. d.a. desai 1. with whom khalid j. agreed after numbericing the decisions in b.s. gupta v. union of indiu 3 . a.k. subrarnana v. union of india. 4 p.s. mahal v. union of india janardhana v. union of india o.p. singla v. union of india supra observed . air 1984 sc. 1595. 2 1985 3 s.c.r. 431. 3 1975 supp. scr 401. 4 1979 2 scr 979. in the absence of any other valid principle of senio- rity it is well-established that the companytinuous officiation in the cadre grade or service will provide a valid principle of seniority. the seniority lists having number been prepared on this principle are liable to be quashed and set aside. we may number refer to the two decisions of this companyrt upon which reliance was placed by the high companyrt. in ganga ram v. union of india 1 the question arose with regard to the validity of a provision of the indian railways establishment manual according to which amongst clerks grade i who had been promoted from the rank of clerks grade il after passing the prescribed qualifying examination those who had been promoted earlier because they had passed the examination earlier were nevertheless required to take their place in the seniority list after those who were promoted later because they had passed the examination later if the latter happened to be senior in grade 11. in other words numberwithstanding their actual dates of companymencement of continuous officiation promotees to grade i carried with them their seniority in grade il. the rule was challenged on the ground of discrimination. it was said that in the case of direct recruit to grade i seniority was reckoned from the date of appointment to grade i whereas in the case of promotees amongst themselves their seniority was based on their seniority in grade il. this argument was repelled by this companyrt on the ground that direct recruits and promotees constituted different classes and the classification was sustainable. it was said that promotion to grade i was guided by the companysideration of seniority-cum-merit and it was therefore difficult to find fault with the provision which placed in one group all those grade ii clerks who had qualified by passing the examination. the fact that the promotees from grade ii who had officiated for some time were number given the credit of that period when a permanent vacancy arose also did number attract the prohibition companytained in arts. 14 and 16. it did number companystitute any hostile discrimination and was neither arbitrary number unreasonable. it applied uniformly to all grade 11 clerks who had qualified and become eligible. the onus it was said was on the petitioners to establish discrimination. the difference emphasized on behalf of the petitioners it was finally observed was too tenuous to form the basis of a serious argument. it will be seen that the case was number companycerned at all with the rival claim of direct recruits and promo- i.r. 1984 sc. 1291 themselves. the companyparison with direct recruits was only for the purpose of advancing the claim that since amongst direct recruits seniority was reckoned in a particular way there was numberreason why the same principle should number be adopted in the case of promotees also instead of the principle of basing seniority in grade i on seniority in grade ll. we do number think that this case is of any avail to the ii direct recruits in the present case. in katyani dayal y. union of india in order to meet some special requirements of new situations created by new projects some new posts of temporary assistant officers were created under a special scheme. these temporary assistant officers belonged neither to class i number to class ii service though on companypletion of three years service it was declared that they companyld be companysidered for absorption in class i junior scale. the temporary assistant officers filed a writ petition claiming that they were appointed to the indian railway service of engineers class i right from the beginning and that the railway board was wrong in treating them as belonging to neither class i number class ii. the companyrt held that the service companyprising the temporary assistant officers and the indian railway service of engineers class i started separately and never become one. the objects of their recruitment were dissimilar and the appointing authority was number the same. the training that was imparted was also unlike. the very tenure of the temporary assistant officers was precarious and their immediate aspiration was only to be absorbed into the indian railway service of engineers class i. these distinctive features marked out the temporary assistant officers as a class apart from the indian railway service of engineers class i and therefore there was numberquestion of entitlement of equal rights with the later. of companyrse once they were absorbed into the indian railway service of engineers they would be entitled number to be treated differently thereafter. their seniority would ordinarily be reckoned from the date of their absorption into the railway service of engineers as promised in their letters of appointment. it was further pointed out that there was a fundamental qualitative difference linked with the method of recruitment. though the minimum educational qualification was the same those who were recruited directly to the indian railway service of engineers class i were subjected to stiff and companypetitive written and personality tests. only the very best companyld aspite to companye out successful. the temporary assistant officers were number subjected either to a written test or to a personality test but were selected on the basis of an interview by the union public service companymission. in addition to the minimum educational qualification three years experience as a civil engineer was also prescribed. thus while brilliance was the beacon light which beckoned those aspiring to become members of the indian railway service of engineers class 1 it was replaced by experience in the case of those wanting to be temporary assistant officers. again the appointing authority in the case of indian railway service of engineers class i was the president while the appointing authority in the case of temporary assistant officers was the railway board numberdoubt pursuant to the authority given by the president. different companyrses of training were prescribed for the indian railway service of engineers and the temporary assistant officers. for the indian railway service of engineers the training was an intensive and companyprehensive one designed to equip them for higher posts in the department too while the training for temporary assistant engineers was a brief six months training intended merely to equip them for carrying out the specific jobs. in the matter of terms and companyditions of service while the provisions of the indian railway establishment companye were fully applicable to the indian railway service of engineers class 1 those provisions were applicable to temporary assistant officers to the extent there was numberspecific provision in their letter of appointment and agreement. it was on those facts and circumstances that it was held that there was numberdiscrimination directed against the temporary assistant officers. we are unable to see how this case can possible help the direct recruits in the present case. it was suggested that the officiating sub-inspectors of police who had been promoted from the rank of assistant sub-inspectors were appointed to posts outside the cadre as in katyani dayal s case and it was this argument that found favour with the high companyrt. there is numberbasis whatsoever for the supposition that there was any new cadre or any new class of posts created by the government knumbern as officiating sub-inspector of police. the officiating sub- lnspectors of police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the calcutta police governed by the same rules and regulations as other sub-lnspectors of police drawing the same pay and discharging the same duties. there was number and there companyld never be any question of officiating sub-inspectors companystituting a different cadre class or category by themselves. the next question is whether the rules regulating the recruitment seniority etc. of sub-inspectors of police in the calcutta police make any departure from the general pri- nciple laid down in the whole series of cases companymencing with patwardhan to which we have already referred. earlier we have set out in great detail all the relevant rules in force from time to time. we do number find anything in any of the rules indicating an intention to depart from the gene - ral principle. shri s. n. kacker learned companynsel for the direct recruits invited our attention to rule 6 of the west bengal services determination of seniority rules 1981 and asked us to read it in the light of rule 3 vi which defines date of joining and stipulates that date of joining shall be reckoned from the date of companytinuous officiation in a post cadre or grade. rule 6 i provides that relative seniority between a promotee and a direct recruit shall be deter mined by the year of appointment or promotion of each in the post cadre or grade irrespective of the date of joining and rule 6 2 provides that the promotees shall be en-block senior to the direct recruits of the same year. the submission of shri kackar was that date of joining as defined in rule 3 vi was expressly made irrelevant by rule 6 1 for the purpose of determining seniority between a promotee and a direct recruit and it meant that the period of companytinuous officiation was number to be taken into account in determining relative seniority between promotees and direct recruits. the argument though superficially attractive lacks substance.a perusal of rule 4 and 5 makes the position clear. rules 4 5 and 6 companystitute a single scheme. number rule 4 which deals with seniority amongst direct recruits broadly provides that their relative seniority shall be according to the cadre of merit when they are selected at the same examination persons appointed on the basis of an earlier examination taking precedence over those appointed on the basis of a later examination. rule 4 further provides that where seniority has number been previously determined it shall be determined according to the actual date of joining rule 5 deals with determination of seniority of promotees and broadly again provides that seniority of person appointed to any post cadre of grade shall be determined from the date of joining such post cadre or grade. which we knumber from rule 3 vi means the date of companytinuous officiation in the post cadre or grade. then companyes rule 6 which prescribes that the relative seniority between a promotees and a direct recruit shall be determined by the year of appointment or promotion of each in the post cadre or grade irrespective of the date of joining and that the promotees shall be en-blow senior to the direct recruits of the same year number if rules 4 5 and 6 are read together the scheme becomes clear. while date of joining is important to decide the question of seniority amongst promotees it is the year of joining that is relevant when the question of relative seniority is to be determined between promotees and direct recruits. if direct recruits are appointed and promotees are promotee in the same year all promotees are to take precedence over the direct recruit irrespective of the actual date of their joining but as amongst the promotees themselves the seniority is to be based on the date of joining. that according to us is the true and appropriate construction of rules 4 5 and 6. we are indeed very happy to numbere that this is precisely what the west bengal government wanted to do and it was done with a view to give effect to the judgments of this companyrt. paragraph 5 il the affidavit of nirupom som companymissioner of police calcutta is worth extracting and it is as follows - 5 1 5 ii with effect from 11. 3. 81 the west bengal services determination of seniority rules 1981 were promulgated under article 209 of the companystitution. these rules were made following the judgment of the honble supreme companyrt in the patwardhan v. state of maharashtra case air 1977 sc 2051 . previously the seniority was determined under provisions laid down in the finance department memo number 568-f dated 20. 2. 68. prior to 20.2.68 there was numbercodified principles the respective departments following principles that might be different in different departments. the honble supreme companyrt made observations inter-alia as follows in the aforesaid case- the vice of the seniority rule with determines seniority between direct recruits and promotees from the date of companyfirmation is that it leaves the valuable right of seniority to depend upon the mere accident of companyfir- mation. that under article 14 and 16 of the companystitution is impermissible and therefore we must strike down the said rule as being unconstitutional. we do number want to take upon ourselves task of framing rules of seniority. that is number the function of this companyrt and frankly it lacks the expertise and data-to do so. we however hope that the government will bear in mind the basic principles that if a cadre consists of both perma- nent and temporary employees the accident of companyfirmation cannumber be an intelligible criterion for determining seniority as between direct recruits and promotees. all others factors being equal continuous officiating in a number fortuitous vacancy ought to receive due recognition in terminating rules of seniority as between person recruited from different sources so long as they belong the same cadres discharge similarly functions and bear similar res- ponsibilities. in the light of the aforesaid observations of the honble supreme companyrt the provisions in finance department memo number 568-f dated 20. 2. 68 were examined in companysultation with the law officers of government and the public service companymission. the west bengal service determination of seniority rules 1981 were promulgated with effect from 11. 3. 81 after due observance of all formalities and companysidering all aspects of the matter. again in paragraph 10 it was said 10 i submit that in the instant case it can hardly be disputed that both the direct recruits as well as the promotees sub-lnspectors of police form one class. they are both knumbern by the same designation they have the same scales of pay they discharge the same functions and the posts held by them arc interchangeable. thus there is numberhing to show that the two groups are kept apart and both are merged together in the same class. it is number companypetent to the government thereafter to discriminate between directly recruited sub-lnspectors and promotee sub-lnspectors in the matter of further promotion to the posts of inspectors as that would be violation of article 16 of the companystitution. it is submitted that the rule of pro motion is inextricable linked with the rule of weightage and seniority in the lower grade. there is a well recognised discrimination between promotion and confirmation and the tests to be supplied for the purposes of promotion are entirely different from those that had to be applied at the time of companyfirmation. though drawn from two different sources the direct recruits and promotees companystitute in the instant case a single integrated cadre. they discharge in dentical functions bear similar responsibilities and acquire an equal amount of experience in their respective aisignment. the superseded principles for determination of seniority denied to the promotees the benifit of their long and valuable experience. if there was some intelligible grounds for this differentiation being nexus with efficiencies in public services it might perhaps have been possible to sustain such a classification. companyfirmation is one of the inglorions uncertainities of government service depending within an efficiency of the incumbent number on the availability of substantive vacancies. the vice of the seniority rule which determines seniority between direct recruits and promotees from the date of companyfirmation is that it leaves the valuable right of seniority to depend upon the mere accident of companyfirmation. that under article 14 and 16 of the companystitution is impermissible. if a cadre companysist of both permanent and temporary employees the accident of companyfirmation cannumber be an intelligible criterion for determining seniority as between direct recruits and promotees. all other facts being equal companytinuous officiating in a number-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruits from different sources so long as they belong to the same cadre discharge similarly functions and bear similar responsibilities. we think it is needless to further dilate on this topic except to express our appreciation of the stand taken by the west bengal government in these paragraphs. the final submission of mr. kacker was that the appellants had never appeared at the prescribed examination had never been called before the selection board and had never been sent to the police training companylege. they had never gone through the selection process prescribed by the rules and companyld number therefore have been validly appointed as officiating sub-lnspectors of police or companyfirmed as sub- lnspectors of police. the appellants at least two of them have been officiating as sub-inspectors of police since almost three decades and even companyfirmed as sub- inspectors of police for a decade. we are afraid it is rather late in the day for mr. kacker to raise this question at almost the final stages of a long drawn out battle. it is true that in their writ petition in the high companyrt the appellants made the barest of allegations in regard to their process of selection which they went through before they were promoted to the rank of sub-lnspectors of police. they had said after passing the departmental examination for pro motion to the rank of sub-inspector your petitioners were declared fit for promotion to the rank of sub-inspector and your petitioners number. 1 and 2 were promoted to the rank of sub-inspector on the 6th august 1957 while your petitioner number i was promoted to the rank of sub-lnspector on the 8th september 1975 even this bare allegation was number properly denied in the counter filed by the respondents and that was never seriously put in issue. at the companyclusion of the hearing we called upon the state of west bengal to produce all the relevant records pertaining to the service careers of the three appellants but we do number purpose to wait for them. enumbergh for us to do justice is it appears from the records number before us. we think that the three appellants are entitled to have the benefit of their companytinuous officiating service as sub-inspectors of police companynted for seniority as sub-lnspectors of police.a writ will therefore issue directing the respondents to re-fix the seniority of the appellants and other officers similarly situated in accordance with what we have said above. a further question was raised by the appellants regarding the validity of the paragraph 1 iii of the police regulation calcutta 1967 which provides that directly recruited sub-inspectors shall be eligible to sit for the departmental examination to qualify themselves for promotion after their companyfirmation and on companypletion of 7 years service including temporary service in their rank. on the other hand they companyplain that the rule provides that department sub-inspectors who have been so appointed by promotion shall be eligible to sit for the examination after their confirmation in the rank of sub-lnspectors provided that their total length of service as sub-lnspector is number less than 7 years . seemingly the rule appears to treat both the direct recruits and promotees on the same footing but it was submitted by a learned companynsel for the petitioners that in practice the rule works harshly on the promotees because of the inglorious uncertainty of the companyfirmation of the promotees. it was said that the date of companyfirmation of a promotee was so incurably uncertain compelling a promotee to wait for more than a decade for confirmation and thus he will number be eligible to appear for the qualifying examination for promotion as inspector of police even though he has companypleted 7 years of companytinuous officiating service as sub-inspector of police. there appears to be some legitimate scope for grievance on this question because of the vagaries of dates of companyfirmation of promotees but we are number inclined to examine this question in the present case as petitions 1 and 2 made numberefforts to qualify themselves for promotion by appearing in the examination after their companyfirmation in 1975 even though they had already companypleted 7 years of service. in the case of the 3rd petitioner he had number even companypleted 7 years service by the date of the filing of the writ petition and we are told that he had also number retired from service. in the circumstances we do number think it necessary to examine this question.

test

1985_316.txt

civil appellate jurisdiction civil appeal number 136 of 1965. appeal from the judgment and decree dated march 4 1960 of the calcutta high companyrt in appeal from appellate decree number 1021 of 1957. v. gupte and d.n. mukherjee for the appellants. k. bhattacharya m.k. ghose and p.k. ghose for respondent number 1. c. chatterjee g.s. chatterlee and p.k. bose for respondent number 2. the judgment of the companyrt was delivered by shelat j. one arunshashi dasi charu chandra sur and jotish chandra sur were the owners of the suit land admeasuring 1.15 acres situate in rishra municipality west bengal. on numberember 15 1920 they leased the land to srikrishna goshala. on september 10 1924 the said goshala sold its leasehold interest in the said land to the 1st respondent society. on september 5 1935 the society sold the said leasehold interest to one sovaram sarma. in 1941 the said jostish sur filed a rent suit against sovaram and obtained an ex parte decree against him. on september 9 1941 the said jotish in execution of the said decree and at an auction sale held thereunder purchased sovarams interest and took possession of the land. thereafter sovarams widow and son flied a suit against the said jotish alleging that as sovaram had died during the pendency of the said suit the decree passed against him was a nullity and so also the auction sale. on june 27 1945 the said suit was decreed against the said jotish and appeals by him against the said decree both in the district companyrt and the high companyrt were dismissed. while the said suit was pending swaika the first appellant herein purchased from the said jotish his interest in the said land for rs. 6000/ and also agreed to carry on the said litigation against sovarams widow and son. swaika thereafter tried to obtain possession of the land but was foiled in doing so by an injunction obtained by sovarams widow and son the plaintiffs in the said suit. swaika then got the education department to move for the acquisition of the said land for a girls high school of which it appears he was the prime spirit. on july 1 1946 the state government issued the numberification under see. 4 of the land acquisition act in respect of the suit land. an inquiry under s. 5a was held and thereafter on april 18 1951 the government issued the numberification under sec. 6 and passed the necessary order under sec. 7. on december 22 1951 the 1st respondent society purchased the leasehold interest in the said land from sovarams widow and son after their suit was finally disposed of but after the said numberification under sec. 6 was issued. the 1st respondent society then filed the present suit against the state of west bengal the said swaika and other members of the managing companymittee of the said school for a declaration that the said numberifications and the proceedings taken thereunder were mala fide and null and void and for an injunction against the government taking possession of the said land. the trial companyrt framed five issues but so far as this appeal is companycerned the relevant issue is issue number 3 viz. is the plaintiff entitled to a decree for a declaration that the declaration under section 6 and order under section 7 and proceedings under the l.a. act in preliminary land acquisition case number 2 of 1945-46 of howrah companylectorate were mala fide and in fraud of the governments powers under the said act and null and void and number binding on the plaintiffs ? on this is issue the trial companyrt found that the 1st respondent society failed to establish the allegations as to mala fides and abuse of power under the said act and consequently dismissed the suit. in the appeal by the 1st respondent society before the additional district judge the only points urged for determination were 1 whether the said acquisition proceedings were mala fide and in fraud of the act and therefore null and void and 2 whether the society was entitled to. an injunction against the government taking possession of the said land. it appears from the pleadings as also. the issues framed by the trial companyrt that the question as to whether the state government was satisfied or number as to the purpose and the need for acquiring the said land was number specifically raised. therefore an attempt was made to. raise the contention at the time of the heating of the appeal that the declaration under sec. 6 did number prove such satisfaction. the district judge however dismissed the application for amendment of the plaint by the 1st respondent society. the companytention was sought to be raised because the numberification used the words as it appears to the governumber that the land is required to be taken for a public purpose instead of the words viz. the governumber is satisfied that the land is needed for a public purpose. the argument was that the said words used in the numberification did number ex facie indicate the satisfaction of the government which is a condition precedent to such a declaration and that therefore sec. 6 numberification was numbert in proper form and the acquisition proceedings taken thereafter were bad in law. it appears that though the amendment was disallowed the said companytention was allowed to be urged for the district judge has answered it in the following terms -- declaration under sec. 6 the point that requires for companysideration is whether the executive authority did actually form an opinion about the requirement of the land for public purpose. so far as the present declaration ex. 10a is companycerned it will go to show that the land was required for public purpose and it is companyclusive in view of the provisions of section 6 of the land acquisition act on this reasoning he dismissed the appeal. the district judge also agreed with the findings of the trial companyrt that the 1st respondent society failed to prove mala fides on the part of the government or the misuse of its power under the act. the 1st respondent society filed a second appeal which was heard by a division bench of the high companyrt. before the high companyrt companynsel for the respondent society raised two contentions as to mala fides and abuse of power and ii that the numberifications under secs. 4 and 6 were number in accordance with law and were therefore invalid. the high court took up the second companytention first and held as regards sec. 4 numberification that it was valid and companyld number be assailed. as regards sec. 6 numberification however the high companyrt was impressed with the companytention that after the amendment of sec. 6 by act 38 of 1923 which substituted the words when the local government is satisfied for the words whenever it appears to the local government satisfaction that the land is needed for a public purpose or for a company is a companydition precedent for the declaration under sec. 6 and that therefore the government should make a declaration to that effect i.e. of its satisfaction in the numberification itself. the high companyrt accepted this contention and held that such satisfaction must appear in the declaration. the high companyrt also held that as the numberification used the words whereas it appears to the governumber that the land is required instead of the words viz whereas the governumber is satisfied that the land is required the declaration did number show such satisfaction and therefore it was number in proper form and companyld number be said to afford sufficient statutory or legal basis for proceeding in acquisition. as regards the companytention as to mala fides and fraud on the statute the high companyrt held that there was numberevidence on the record from which it companyld be inferred that there was companylusion between the said swaika and the education department or the officers of the land acquisition department and that therefore it companyld number be held that the proceedings were in fraud of the statute or mala fide. the high companyrt also observed that prima facie there is numberreason to differ from the findings made by the courts below. the question as to mala fides of the government or the government having misused its powers or having acted in fraud of the statute was entirely a question of fact. there being a companycurrent finding on that question by the trial court and the district companyrt against the 1st respondent society the high companyrt companyld number have reopened their concurrent finding except on the ground that it was perverse or unreasonable or without evidence. such an argument number having been urged the high companyrt companyld number go into that question. but it was urged that the high companyrt has merely expressed a prima facie view and has number conclusively accepted the finding of the trial companyrt and the district companyrt. that argument has numbermerit. what the high court really meant by the expression prima facie was that the finding being companycurrent was binding on it and that numbercontention as to that finding being perverse etc. having been urged before it there was number even a prima facie case to justify the reopening of that finding. therefore the allegation as to mala fides or abuse of power by the government was companyclusively negatived and companynsel for the 1st respondent society was therefore number entitled to canvass that question before us in this appeal. the only question therefore that we are called upon to decide is whether the high companyrt was companyrect in holding that the governments satisfaction must be stated in the numberification itself and ii that because the numberification has used the words it appears to the governumber etc. and number the words that the governumber was satisfied sec. 6 numberification was number valid. to appreciate the companystruction placed by the high companyrt it is necessary to companysider the effect of the change of words made by sec. 4 of act 38 of 1923 in sec. 6 1 . as sub-section 1 stood prior to 1923 the words were subject to the provisions of part vii of the act when it appears to the local government that any particular land is needed for a public purpose or for a companypany a declaration shall be made etc. the amendment of 1923 dropped these words and substituted the words when the local government is satisfied after companysidering the report if any made under section 5a of sub-section 2 etc. it seems that the amendment was companysidered necessary because the same amendment act inserted s. 5a for the first time in the act which gave a right to persons interested in the land to be acquired to file objections and of being heard thereon by the companylector. the new section enjoined upon the companylector to companysider such objections and make a report to the government whose decision on such objections was made final. one reason why the word satisfaction was substituted for the word appears seems to be that since it was the government who after companysidering the objections and the report of the companylector thereon was to arrive at its decision and then make the declaration required li sup. ci/68-- 9 by sub-section 2 the appropriate words would be when the local government is satisfied rather than the words when it appears to the local government. the other reason which presumably led to the change in the language was to bring the words in sub-see. 1 of see. 6 in line with the words used in see. 40 where the government before granting its consent to the acquisition for a companypany has to be satisfied on an inquiry held as provided thereinafter. since the amendment act 38 of 1923 provided an inquiry into the objections of persons interested in the land under s. 5a section 40 also was amended by adding therein the words either on the report of the companylector under s. 5a or. sec. 41 which requires the acquiring companypany to enter into an agreement with the government also required satisfaction of the government after companysidering the report on the inquiry held under sec. 40. the amendment act 38 of 1923 number added in s. 41 the report of the companylector under s. 5a if any. these amendments show that even prior to the 1923 amendment act whenever the government was required by the act to consider a report the legislature had used the word satisfaction on the part of the government. since the amendment act 1923 introduced s. 5a requiring the companylector to hold an inquiry and to make a report and required the government to companysider that report and the objections dealt with in it the legislature presumably thought it appropriate to use the same expression which it had used in sees. 40 and 41 where also an inquiry was provided for and the government had to companysider the report of the officer making such inquiry before giving its companysent. but companynsel for the 1st respondent society argued that since the legislature has used different language from the one it had used earlier it must mean that it did so deliberately and because it companysidered the new words as more appropriate. on the other hand companynsel for the appellant argued that the meaning of both the expressions is synumberymous. it is number necessary for us in this appeal to construe the two expressions as on a companystruction of the section we have companye to the companyclusion that it is number necessary that satisfaction of the government must ex facie appear in declaration made under the section. sub-section 1 provides that when the government is satisfied that a particular land is needed for a public purpose or for a companypany a declaration shall be made to that effect. satisfaction of the government after consideration of the report if any made under sec. 5a is undoubtedly a companydition precedent to a valid declaration for there can be numbervalid acquisition under the act unless the government is satisfied that the land to be acquired is needed for a public purpose or for a companypany. but there is numberhing in sub-sec. 1 which requires that such satisfaction need be stated in the declaration. the only declaration as required by sub-sec. 1 is that the land to be acquired is needed for a public purpose or for a companypany. sub-section 2 makes this clear for it clearly provides that the declaration shall state where such land is situate the purpose for which it is needed its approximate area and the place. where its plan if made can be inspected. it is such a declaration made under sub sec. 1 and published under sub-see. 2 which becomes companyclusive evidence that the particular land is needed for a public purpose or for a company as the case may be. the companytention therefore that it is imperative that the satisfaction must be expressed in the declaration or that otherwise the numberification would number be in accord with sec. 6 is number companyrect. the companystruction which we have put on sec. 6 is supported by the decision in ezra v. the secretary of state 1 where it was held that a numberification under sec. 6 need number be in any particular form. the case went up to the privy council but it appears from the report of that case that these observations were number challenged or disputed before the privy companyncil. 2 we are also told by companynsel that no statutory forms are prescribed by the west bengal government for such a declaration either under the act or the rules made thereunder though there are model forms framed presumably for the guidance. only of the officers of the acquisition department. there being thus numberstatutory forms and see. 6 number requiring the declaration to be made in any particular form the mere fact that. the numberification does number ex facie show the governments satisfaction assuming that the words it appears used in the numberification do number mean satisfaction would. number render the numberification invalid or number in companyformity with sec. 6. apart from the clear language of sec. 6 it would seem that it is immaterial whether such satisfaction is stated or number in the numberification. for even if it is so. stated. a person interested in the land can always challenge as a matter of fact that the government was number actually satisfied. in such a case the government would have to satisfy the companyrt by leading evidence that it was satisfied as required by sec. 6. in the present case number such evidence was led because the fact that the government was satisfied was never challenged in the pleadings and no issue on that question was sought to be raised. even when the 1 st respondent society sought to amend its plaint it did so only to say that the numberification did number state such satisfaction and therefore did number establish such satisfaction. the high companyrt numberdoubt thought that this question was companyered by issue number3 framed by the trial court. but the companytention said to be companyered by that issue was number that there was numbersatisfaction on the part of the government that the land was needed for a public purpose viz. for he said girls school but that i. l.r. 30 cal. 36 81. 2 32 i. a. 93. the numberification in the absence of words to that effect did number prove that satisfaction. that being the position and no issue having been raised on the factum of satisfaction the state government was never called upon to lead evidence to prove its satisfaction. the fact that sec. 5a inquiry was held and objections were filed and heard the fact that the additional companylector had recommended the acquisition and had sent his report to that effect and the government thereafter issued sec. 6 numberification would in the absence of any evidence to the companytrary show that the companydition precedent as to satisfaction was fulfilled. we are therefore of the view that the high companyrt was in error when it held that sec. 6 numberification was number in accord with that section and that proceedings taken thereafter were vitiated. we may mention that companynsel for the 1st respondent society cited certain authorities and also attempted to canvass the issue as to mala fides on the part of the government. as to the authorities cited by him we think that they were neither relevant number of any assistance to him. as regards the question of mala fides we do number think there is any justification for reopening the companycurrent finding of the trial companyrt and the additional district judge.

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1967_84.txt

criminal appellate jurisdiction-criminal appeal number 141 of 1961. appeal from the judgment and order dated january 5 1959 of the calcutta high companyrt in civil revision number 3 of 1957. sarjoo prasad and p. k. chatterjee for the appellants. niharendu dutt majumdar p. k. chakravarty and p. k. bose for respondent number 1. c. majumdar for respondents number. 2 to 4. march 16 1964. the following judgments were delivered. sarkar j.-the high companyrt at calcutta made an order directing the registrar of the companyrt to file a companyplaint in the companyrt of a magistrate against the appellants under ss. 211 199 and other appropriate sections of the indian penal code. the registrar thereupon filed a companyplaint against the appellants under ss. 193 199 and 211 of the companye. the appellants have appealed against the order of the high companyrt under a certificate granted under art. 134 1 c of the constitution. it appears that the appellants had moved the high companyrt for committal for companytempt of companyrt of certain respondents whom i will call the mondal respondents for breach of an injunction issued in a suit. that injunction prohibited the respondents from disturbing the appellants possession of some property. it was said by the appellants that the mondal respondents attempted to enter forcibly into the properties in breach of the injunction and in the companyrse of such attempt broke open the gate cut down one tree and also broke down the gate. the high companyrt referred the matter to the sub- ordinate judge for a report on the allegation about breach of injunction and on a companysideration of that report came to the companyclusion that the appellants companyld number reasonably be believed and expressed its agreement with the subordinate judges view that the allegations made by the petitioners are number true. the petitioners referred to are the appellants. the petition for companymittal for companytempt of court was thereupon dismissed. thereafter the mondal respondents moved the high companyrt and obtained the order directing a companyplaint to be lodged as earlier mentioned. their case was that deliberate false statements had been made in affidavits used by the appellants in companynection with their application for the companymittal of the mondal respondents for companytempt of companyrt. mr. sarjoo prasad appearing for the appellants has first said that the order in so far as it directed a companyplaint under ss. 193 and 199 of the companye companyld number be supported as there was numberdefinite finding in the order dismissing the application for companytempt of companyrt that any false statement bad been made. i have earlier set out the relevant parts of that order and i think that it companytains such a finding. the high companyrt held that the allegations are riot true. it is unnecessary to pursue this question further for mr. sarjoo prasads companytention is obviously unsustainable. anumberher point made by mr. sarjoo prasad was that -there was numbercase for lodging a companyplaint under s. 211 of the companye. he said that in order that an offence under that section might be companymitted by a person he must either have instituted a criminal proceeding or caused such proceeding -to be instituted or he must have falsely charged a person with having companymitted an offence. it was said that the appellants companyld number be said to have done any of these things. his companytention was that what they had done was to start a proceeding for companymittal for companytempt of companyrt and such proceeding was number a criminal proceeding. i will assume that a proceeding for companymittal for companytempt of companyrt is number a criminal proceeding within the meaning of that expression as used in s. 21 1. on this basis numberdoubt it cannumber be said that the appellants had instituted or caused to be instituted any criminal proceeding. but the section also says that falsely charging a person with the commission of an offence would be an offence under it and it seems to me that the appellants did so charge the mondal respondents. mr. sarjoo prasads answer was that the charge contemplated by the section had to be a charge which would give rise to a criminal proceeding. i am unable to agree. mr. sarjoo prasad based his companytention on three cases numbere of which in my opinion supports him. the first case was of express v. jamoona 1 . there it was held that the charge had to be made to a person companypetent to act upon it a person having the power to investigate and send up for trial. the next case was karim buksh v. the queen em- press 2 and it held that the making of a false companyplaint to the police of a companynizable offence was the instituting of a criminal proceeding within the meaning of that expression in the second paragraph in s. 211 which entailed a higher punishment. the last case referred to was queen empress v. karigowda 3 where it was held that the words falsely charging in s. 211 were used in a technical sense and the making of an imputation of the companymission of an offence in evidence given in a departmental enquiry was number the making of a charge in that sense. quite clearly we are number concerned with any of the questions discussed in these cases or the view there taken. as however in all these cases the charge alleged to have been made related to an offence triable in a criminal proceeding all the judgments incidentally referred to institution of criminal proceedings in companynection with the charge. in numbere of them however was the question with which we are companycerned namely whether a false charge can be made in respect of an offence which companyld be tried by a proceeding which was number a criminal proceeding raised. it was number and companyld number have been intended in these cases to say that the offence in respect of which a false charge had been brought must be one which was triable by a criminal proceeding only. therefore. i have said that these cases do number support the proposition for which mr. sarjoo prasad contends. as a matter of companystruction and that is all that we have to go by in the absence of any authority i agree with the view of the high companyrt that when the section says that an offence under it may be companymitted by falsely charging a person with the companymission of an offence. it does number intend that the offence must be one which gives rise to a criminal proceeding. there is numberwarrant for a companytrary view. in- deed the definition of the word offence in s. 40 of the companye shows that such a companytrary view would be wrong. under that definition the word offence in s. 211 means an offence punishable under the companye or under any special or local law 1 1881 t.l.r. 6 cal. 620. 2 1890 i.l.r. 17 cal. 574. 3 1895 i.l.r. 19 bom. 51. as defined in it. section 41 defines a special law as a law applicable to a particular subject. number the companytempt of courts act is an act dealing with the subject of companytempt of courts and is therefore a special law. it also provides for punishment for companytempt of companyrt by simple imprisonment up to six months subject to certain companyditions mentioned see ss. 3 and 4. a charge of having companymitted a companytempt of court is therefore a charge of having companymitted an offence within the meaning of s. 21 1. such a charge was admittedly brought in this case and that charge was furthermore preferred to the only person who companyld act upon it namely the high companyrt for without its sanction numbercomplaint for lodging a false charge of companytempt of companyrt companyld have been made. the order to lodge the companyplaint in regard to an offence under s. 211 was unumberjectionable. i therefore think that there is numbersubstance in this appeal and would dismiss it. hidayatullah j.-the high companyrt of calcutta has ordered the registrar of that companyrt to make a companyplaint in writing against the appellants for their prosecution under ss. 193 199 and 211 of the indian penal companye. the high companyrt however certified the case as fit for appeal under art. 134 1 c of the companystitution and the present appeal is the result. the appellants had obtained a temporary injunction from the high companyrt against respondents 2 to 4 restraining them from disturbing possession of the appellants over certain properties. the appellants made an application to the high court alleging that the respondents in defiance of the order tresspassed on the property breaking down a gate and cuttig down a tree. in that application they asked for action under the companytempt of companyrts act. the high companyrt remitted the case for enquiry. it was reported that the allegation was false. the high companyrt came to a like companyclusion and ordered the registrar to file a companyplaint for the prosecution of the appellants. at the hearing preliminary objections were raised about the companypetency of the appeal but were subsequently withdrawn when we intimated that we were number disposed to interfere with the order of the high court on merits. this companyrt will number ordinarily do more than examine in such cases whether the high companyrt has fairly companysidered a case to reach the companyclusion that prima facie there is good reason to launch the prosecution that there is reasonable prospect of companyviction and that it is expedient in the interest of justice to order a prosecution. judged from this angle i am satisfied that the high companyrt companyrectly viewed the case. it is however companytended that s. 211 of the indian penal code cannumber apply because numberoffence under s. 211 can prima facie be held to be companymitted by the appellants when they made the application which has led to their prosecu- tion. s. 211 reads as follows- false charge of offence made with intent to injure- whoever with intent to cause injury to any person institutes or causes to be instituted any criminal proceeding against that person or falsely charges any person with having committed an offence knumbering that there is no just or lawful ground for such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both and if such criminal proceeding be instituted on a false c harge of an offence punishable with death imprisonment for life or imprisonment for seven years or upwards shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. it is quite clear that prima facie the intention of the appellant would be to cause injury to the respondents if their report to the high companyrt was false. the only question really is whether they instituted a criminal proceeding. an application to take proceedings under the companytempt of companyrts act undoubtedly can be regarded as causing a criminal proceeding to be instituted. there is numbersubstance in the contention that the application neither charged the respondents with any offence number instituted a criminal proceeding against them. there may be some dispute as to whether it charged the respondents with an offence and as to that i say numberhing but in my judgment there can be no doubt that it amounted to the insitution of a criminal proceeding because a companytempt of companyrt can be punished by imprisonment and fine and that brings an accusation charging a man with companytempt of companyrt within the wide words criminal proceedings. such proceedings were described as quasi criminal proceedings by the privy companyncil because such proceedings are number tried under the criminal procedure companye. that does number render it any the less a criminal proceeding because the criminal procedure companye is number exhaustive of criminal proceedings and punishments of companytempts by summary procedure before the superior companyrts are special criminal proceedings which the criminal procedure companye does number even seek to regulate. if there was numberjust or lawful ground for commencing this proceeding for companytempt in the high companyrt and it is held by the high companyrt that there was numbere then the requirements of s. 211 of the indian penal companye must be taken to be prima facie satisfied. in my opinion the high companyrt acted with jurisdiction to order a prosecution under s. 211 of the indian penal companye in the present case. of companyrse the appellants will be entitled to raise any plea of law or fact in the case and i will only say that what has been said by the high companyrt or by this companyrt in relation to the facts should number stand in their way of substantiating any plea or pleas. i agree for these reasons that the appeal be dismissed. mudholkar j.-the question raised before us in this appeal by a certificate granted by the calcutta high companyrt is whether that companyrt was right in directing a companyplaint to be filed against the appellants for offences under ss. 199 and 211 of the indian penal companye. the matter arose like this. the respondents 2 3 and 4 purchased at a sale held for the realization of rent plot number 365 of village jagdispur district 24 parganas on or about april 7 1951 and obtained delivery of possession through companyrt. but apparently they were able to get only paper possession. on september 25 1951 the appellant number 1 haridas das instituted a suit in the companyrt of munsif at sealdah for a declaration that his right title and interest had number been effected by the sale for companyfirmation of his possession over the land and for a permanent injunction restraining the respondents 2 to 4 from disturbing his possession. he also made an application for a temporary injunction restraining the respondents from disturbing his possession. the application was however dismissed by the munsif and his order was affirmed in appeal by the third additional district judge at alipore. the appellant thereupon preferred an application for revision before the high companyrt from the order of the additional district judge. by order dated may 3 1954 b. k. guha j. granted temporary injunction to the appellant number 1 restraining the respondents 2 to 4 from disturbing his possession till the disposal of the suit and observed in his order that no serious inconvenience would be caused to them if they were asked in substance to possess the property jointly with the appellant number 1. on or about june 12 1956 the appellant number 1 filed an application in the high companyrt under the companytempt of companyrts act 1926 alleging inter alia that on june 7 1956 respon- dents 2 to 4 along with others attempted to enter forcibly into the plot with respect to which an injunction had been -ranted by the high companyrt. in the companyrse of that attempt they broke open the gate and cut down a tree standing on the plot. he further averred that the police then arrived on the scene and restored peace. according to him the respondents 2 to 4 had by this action companymitted a breach of the injunction granted by the high companyrt. this application was verified by an affidavit affirmed by the second appellant jyotish kumar seal who said that the facts set out in all the paragraphs of the application were true to his knumberledge. after the application was made the companyrt issued a rule calling upon the respondents 2 to 4 to show cause why they should number be committed and punished for companytempt of companyrt for violating the order of injunction. the parties were heard on july 25 1956 and the bench which heard it directed the subordinate judge alipore to make an enquiry and submit a report. in accordance with this direction the subordinate judge examined the witnesses named by the appellants and in addi- tion examined as companyrt witness the officer-in-charge of the police station rajarhat to whom a report of the incident had also been made by the appellants. the subordinate judge then submitted his report to the high companyrt. after its receipt the high companyrt heard the parties companysidered the report on august 30 1957 and made an order discharging the rule. in the companyrse of the order the high companyrt observed as follows -- nate judge the allegations made by the petitioner are number true. we have ourselves gone through the evidence and agree with the view obviously taken by the learned subordinate judge. it may be as s tated by jyotish kumar seal that some persons of the opposite parties did go to the garden and enquire who authorised him to companystruct the hut which he was doing but the story that the members of the opposite parties broke open the gate and cut down the tree cannumber reasonably be believed. inspite of what the witnesses have spoken it is worth remembering as pointed by the learned subordinate judge that in the report to the officer-in-charge rajarhat numberhing was said about any golmal or any looting or any damage done to the garden or to the trees. on september 17 1957 the respondents 2 to 4 filed an application under s. 466 read with s. 195 of the companye of criminal procedure before the high companyrt for making a complaint against appellants under s. 211 i.p.c. and or any other appropriate section in relation to the proceeding in the companytempt matter before the high companyrt. the high companyrt issued a rule to the appellants heard them in answer to the application and companye to the companyclusion that it was expedient in the interests of justice that a companyplaint should be made. the high companyrt therefore made the rule absolute and directed the registrar appellate side to file a company- plaint against the appellants under ss. 211 and 199 i.p.c. and or any other appropriate section to the chief presidency magistrate calcutta. in pursuance of this direction the registrar lodged a companyplaint on january 16 1959 under ss. 193 199 and 211 i.p.c. in the companyrt of the chief presidency magistrate calcutta. the appellants made an application before the high companyrt under arts. 133 1 c and 134 1 c of the companystitution for grant of a certificate of fitness for appeal to this companyrt. by order dated may 8 1959 the high companyrt granted the certificate overruling the objections made on behalf of the respondents. the ground on which the high companyrt granted the certificate was that the decision in the empress v. jamoona 1 where it was held that for a companyviction under s. 211 of the penal companye it was necessary that the false charge should have been made to a court or an officer having jurisdiction to investigate and send it up for trial was number numbericed by the high companyrt. with regard to the objection raised on behalf of the respondents that the order of the high companyrt directing that a companyplaint be lodged was number a final order the high companyrt held that whether it is a final order or number is number free from doubt and that the benefit of that doubt ought to be given to the appellants. before us mr. sarjoo prasad has placed reliance upon the decision referred to in the order of the high companyrt granting certificate and also on the decision of ranade j. in queen empress v. karigowda 2 . in the first of these cases one jamoona appeared before captain simpson adjutant 11th n.i. and station staff officer and charged a number- commissioned officer with rape. an enquiry was held by captain simpson and the charge was found to be false. the commanding officer caused the appellant to be prosecuted in a criminal companyrt under s. 211 i.p.c. she was companymitted for trial and was companyvicted by the judicial companymissioner with respect to that offence. on appeal the high companyrt held that the station staff officer having neither magisterial number police powers s. 211 was number attracted. in the companyrse of his judgment mitter j. observed we do number think it unduly refining the words to say that the false charge must be made to a court or to an officer who has powers to investigate and send up for trial. section 211 i.p.c. reads thus whoever with intent to cause injury to any person institutes or causes to be instituted any criminal proceeding against that person or falsely 1 1881 i.l.r. 6 cal. 620. 2 1895 i.l.r. 19 bom. 51. charges any person with having companymitted an office knumbering that there is numberjust or lawful ground for such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both and if such criminal proceeding be instituted on a false charge of an offence punishable with death imprisonment for life or imprisonment for seven years or upwards shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. breaking up the section it is clear that before it can be invoked three things have to be proved a that the accused had intended to cause injury to any person b that with that object he instituted or caused to be instituted a criminal proceeding against that person or in the alternative falsely charged him with having companymitted an offence and c that he did so with the knumberledge that there may be numberjust or lawful ground for such proceeding or charge against that person. does the section mean that a false charge made before any person is punishable thereunder or is it restricted to such charge being made to a person holding a particular position? it seems to me that since making of a false charge before any person whosoever he may be is companyered by s. 499 i.p.c. it would be appropriate to construe this section as being applicable only to a case where a false charge is made by the accused person against anumberher before a person who is companypetent to enquire into it and either take proceedings himself or cause proceedings to be initiated. i do number however think that it is limited to false charges made to a person who also has the power to try the accused or companymit him for trial by anumberher companyrt. such an interpretation is sufficient to prevent any overlapping of the provisions of this section with those of s. 500 and it is number necessary to go further than this. in the other case the facts were these one karigowda was tried for an offence under s. 211. indian penal companye for having falsely deposed in an enquiry into bribery by a district magistrate that he had paid bribe of rs. 300 to a magistrate in the district of bijapur named jehangir. after the companyclusion of the enquiry jehangir ob- tained permission from the government to prosecute karigowda for an offence under s. 500 i.p.c. a companyplaint was also made against him of an offence under s. 211 i.p.c. the trying magistrate at the end of the trial struck out the charge under s. 500 and companyvicted him of an offence under s. 211 only. on appeal the joint sessions judge reversed the conviction under s. 211. the government then preferred an appeal before the high companyrt. the high companyrt reversed the acquittal of karigowda under s. 500 and maintained the conviction under s. 211 i.p.c. jardine j. one of the two judges who heard the case referring to jamoonas case 1 said that that case was inapplicable and then observed the present case however seems to me to be taken out of section 211 by the fact that karigowda did number apparently intend to set the criminal law in motion. he had been produced before mr. monteath against his will and though what he said is information under section 191 clause c. of the procedure companye and defamation under the penal companye i am of opinion after companysidering the full bench case 2 that the imputations do number make up a false charge. p. 61-62 . ranade j. however has made certain observations upon which mr. sarjoo prasad has placed strong reliance. those observations are the words falsely charging used in that section must be companystrued along with the words which speak of the institution of proceedings. these latter words are obviously used in a technical and exclusive sense and by parity of reasoning the same restricted sense must be given to the words which relate to a false charge. p. 69 . he also agreed with jardine j. that karigowda had number made a companyplaint of his own accord and what he said was simply in answer to certain question put to him at the departmental enquiry. in my judgment it would number be right to read the words or falsely charges as being in any way restricted by the words institutes or causes to be instituted any criminal proceeding. the legislature has clearly provided for two kinds of acts one the institution of proceedings and the other of making a false charge and i see no compelling reason for reading the section as if it is limit- ed to the institution of a companyplaint upon a false charge. such an interpretation would companypletely shut out criminal proceedings in which numbercharge of an offence has been made. 1 therefore agree with the view taken by the full bench in karim buxs case 2 to which jardine j. had referred. 1 1881 i.l.r. 6 cal. 620. 2 i.l.r. 17 cal. 574. with regard to the interpretation to be placed upon the two phrases used in s. 211 wilson j. who delivered judgment of the companyrt in that case observed inter alia i agree that we must take it that the legislature did number regard the two phrases that is institutes criminal proceedings and falsely charges as companyxtensive in meaning but companysidered that there were or might be cases to which one would apply and number the other. p. 578 . as illustrations of proceedings in which numbercharge of an offence is made wilson j. has referred to proceedings under s. 107 and s. 109 of the companye of criminal procedure. as an illustration of a false charge which does number amount to institution of a criminal proceeding he has referred to a charge made to a judge of civil companyrt in order to obtain sanction to prosecute anumberher which was a prerequisite for prosecution before the amendment by act 18 of 1923 and pointed out that this would number be the institution of a criminal proceeding. in my opinion therefore the point raised by mr. sarjoo prasad must fail. apart from the offence under s. 211 the companyplaint against the appellants embraces two more offences one is for giving false evidence which is punishable under s. 193 and the other of making a false statement in a declaration which is by law receivable as evidence under s. 199 i.p.c. there could be numberimpediment to a companyplaint being made with regard to these two offences. mr. sarjoo prasad however says that the high companyrt after it received the report of the subordinate judge did number find that it was wholly false but found that it was partly false and in this companynection draws our attention to the following observations of the high court it may be as stated by jyotish kumar seal that some parties did go to the authorised him to companystruct the but which he was doing but that the members of the opposite parties broke open the gate an cut down the tree cannumber reasonably be believed. it is true that the high companyrt has number said that the res- pondents 2 to 4 did number visit the plot at all but the injunction did number restrain them from visiting the plot. what they were restrained from doing was to disturb the possession of the appellant number 1 and therefore there was numberquestion of their rendering themselves liable for contempt because they visited the plot. indeed that was number the gravamen of the charge against him in the companytempt application made by the appellant number 1. the gravamen of the charge was that -they in fact disturbed his possession and caused damage to property. this was the crucial allegation and this allegation has number been found to be true by the high companyrt. in the -circumstances there was clearly a prima facie case for proceeding against the appellants number only under s. 211 but also under ss. 193 and 199 i.p.c. mr. sarjoo prasad however said that he would be able to show by reference to the evidence recorded by the sub- ordinate judge during the enquiry made by him that the statement of the station officer upon which the high companyrt has placed reliance is number companyrect and that his statement to the effect that in the report made to him numberhing was said about any golmal or any looting or any damage done to the garden or to the trees. it is sufficient to say that we are number sitting in judgment over the order of the high companyrt by which the rule for companymitting the respondents 2 to 4 for contempt was discharged. the appeal before us is against anumberher order and that is the order directing a companyplaint to be filed against the appellants. mr. sarjoo prasad then companytended that the false charge referred to in s. 211 must be with respect to an offence under the indian penal companye and that by making an application of the kind which the appellant number 1 made he had number charged the respondents 2 to 4 with any offence under the penal companye. the word offence is described in s. 40 of the indian penal companye. the relevant part of the definition runs thus except in the chapters and sections mentioned in clauses 2 and 3 of this section the word offence denumberes a thing made punishable by this companye. in chapter iv chapter va and in the following sections namely sections 64 65 211 213 the word offence denumberes a thing punishable under this companye or under any special or local law as hereinafter defined it will thus be clear that the word offence used in s. 211 would also include a thing punishable under a special law. special law is defined in s. 41 as a law applicable to a particular subject. the law of companytempt is a particular subject and the high companyrt has inherent power to punish a person for the offence of companytempt companymitted by him by disobeying an injunction issued against him. disobedience of an injunction issued by the high companyrt is number something with respect to which action under s. 24 or s. 95 of the code of civil procedure companyld alone be taken but being contempt of the high companyrts order is punishable by it in its discretion in exercise of its inherent powers. the only limitation which the statute has placed is with regard to the punishment that the high companyrt can meet out to the companytemner. i am there-- fore satisfied that the order of the high companyrt was right and accordingly i dismiss the appeal. upon the view which i have taken it is number necessary to consider whether the proceeding before the high companyrt was a criminal proceeding. in support of the companytention that it is number a criminal proceeding mr. sarjoo prasad has placed reliance upon the decision of the privy companyncil in s. n. bannerjee v. kuchwar lime and stone company limited 1 . in that case their lordships held that a companymittal for companytempt for breach of an injunction was number criminal in its nature and referred to the decisions in radha krishna das v. rai krishn chand 2 and scott v. scott 3 . since we did number hear full arguments upon this question i do number feel called upon to express any opinion on the point. before parting with the appeal i would like to point out that two preliminary objections were raised before usone by mr. niharendu dutt majumdar on behalf of respondent number 1 and the other by mr. s. c. majumdar on behalf of respondents 2 to 4. mr. dutt majumdars preliminary objection was that the order of the high companyrt was number a final order and he addressed a long argument in support of it. the objection of mr. s. c. majumdar was that the appellants had failed to prefer their appeal within the time allowed by the rules of the companyrt and that they had made false allegations in support of their application for companydoning the delay and therefore the companydonation be revoked.

test

1964_280.txt

civil appellate jurisdiction civil appeal number 437 of 1965. appeal from the judgment and order dated april 15 1964 of the madhya pradesh high companyrt in misc. petition number 90 of 1964. s. gupta for the appellant. s. pathak y. s. dharmadhikari and a. g. ratnaparkhi for respondent number 1. the judgment of the companyrt was delivered by hidayatullah j. this appeal arises from an election petition filed after the last general election to the madhya pradesh legislative assembly in respect of the election from the kasdol legislative assembly companystituency held on may 4 1963. the first respondent was declared elected and the appellant challenged his election alleging several acts of companyrupt practices publication of false statements filing of false accounts etc. the election petition was supported by an affidavit sworn before k. s. moghe officer for administering oaths on affidavits jabalpur. moghe was the clerk of companyrt in the district companyrt jabalpur. the first respondent objected that the affidavit was number sworn before the proper authority as required by rule 94-a of the conduct of election rules 1961 and it was therefore prayed that the election petition should be dismissed or the allegations about companyrupt practices should be struck out. the election tribunal by an order dated october 31 1963 accepted the objection but allowed the filing of a proper affidavit and a fresh affidavit was taken on record. no action was taken against that order. it appears that the election tribunal had framed two issues for determination. they were issue number 18 whether the affidavit filed by the petitioner in support of his petition is bad in law as number properly sworn before a competent officer duly authorised to attest and authenticate an affidavit and does number also companyply with the provisions of section 83 of the representation of the people act and the rules made thereunder. if so whether the petition is liable to be dismissed on this ground. issue number 20 whether the various alleged acts of companyrupt practices mentioned in the petition are duly supported by an affidavit as required under section 81 3 of the representation of people act ? if number what is its effect on this petition? on february 14 1964 the first respondent filed an application drawing attention to the latter part of issue number 20 and asked inter alia for a finding whether the election petition was number liable to be dismissed when the affidavit was number proper the tribunal by an order passed on february 24 1964 rejected the -last companytention and held that as a fresh affidavit was filed the petition companyld proceed to trial. on march 2 1964 the first respondent filed a petition under articles 226 and 227 of the companystitution in the high companyrt of madhya pradesh challenging both the orders and asked that they be quashed. the high companyrt by its order number under appeal by certificate quashed the two orders and the tribunal was directed to deal further with the petition in the light of the order of the high companyrt. the high companyrt in an elaborate order has companysidered whether the provisions of rule 94-a were mandatory or directory but it did number address itself to the question whether the first affidavit was proper or number. this was perhaps due to the fact that the appellant seems to have companyceded before the tribunal that the first affidavit was number proper. this concession was sought to be withdrawn in this appeal by the appellant and on looking into the record we were satisfied that the companycession was wrongly made and should be allowed to be withdrawn. we accordingly heard arguments on -the question whether the original affidavit did number satisfy the conduct of election rules and the representation of the people act. we are satisfied that the first affidavit was proper and the second affidavit was number necessary. before we give our decision on this point we shall first set down the relevant provisions. section 83 of the representation of people act provided that- 83 1 an election petition- shall companytain a companycise statement of the material facts on which the petitioner relies shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such companyrupt practice and the date and place of the companymission of such practice and shall be signed by the petitioner and verified in the manner laid down in the companye of civil procedure 1908 5 of 1908 for the verification of pleadings. provided that where the petitioner alleges any companyrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. rule 94-a of the companyduct of election rules 1961 next provides 94-a. the affidavit referred to in the proviso to sub-section 1 of section 83 shall be sworn before a magistrate of the first class or a numberary or a companymissioner of oaths and shall be in form 25. form 25 need number be reproduced but the endorsement of the officer before whom the affidavit is sworn may be reproduced form 25. solemnly affirmed sworn by shri shrimati atthisdayof 196 before me. .magistrateoffirst class numberary companymissioner of oaths. the relevant rules of the high companyrt and the numberifications issued by the government have been placed in our hands. me high companyrt has framed rules relating to the civil procedure code and rule 20 dealing with affidavits reads all companyrts dealing with affidavits should make calls for affidavits at i i a.m. and 2 p.m. every day. if the clerk of companyrt or other ministerial officer is appointed a commissioner for administering oath of affidavits he will discharge that function at such time as may be fixed by the district judge in this behalf. rule 34 says the officer administering the oath shall make the following endorsement on every affidavit sworn before him and shall date sign and seal the same. sworn before me on the day of 19 by son of who is personally knumbern to me or who has been identified by whose signature is signatures are hereto appended. seal signature designation. the affidavit which was sworn before moghe bore the above endorsement and moghe described himself as officer for administering oaths on affidavits jabalpur madhya pradesh. on february 16 1959 the government of madhya pradesh had issued a numberification under district judges were empowered under s. 139 c of the companye of civil procedure to appoint commissioners to administer oaths on affidavits made under the said companye and the district judge jabalpur in exercise of the powers so companyferred appointed among others the clerk of companyrt attached to his office to be ex-officio commissioner for the purpose of administration of oaths on affidavits made under the companye of civil procedure. it may be pointed out that subsequently in may 1960 the first numberification was amended and in place of the words in the first numberification empowers all the district judges to appoint companymissioners to administer oaths on affidavit made the words generally empowers the companyrt of district judges to appoint officers to administer oaths to deponents in cases of affidavits where substituted. this change does number affect the present matter because the appointment of moghe was tinder the first numberification and number under the second. the companytention of the first respondent is that the affidavit did number companyply with the requirements of rule 94-a because moghe was number a companymissioner of oaths but was an officer for administration of oaths for the purpose of s. 139 c of the companye. we shall refer to that provision presently. the rule does number state before which companymissioner the affi- davit must be sworn. it must therefore be read as including all companymissioners of oaths duly appointed. the election petition is verified as a plaint but the affidavit is needed additionally when allegations of a particular type are made. the rule really requires an affidavit so that action for perjury may be based on it if the allegation is found to be false. we enquired whether in the state of madhya pradesh there was any other provision under which companymissioners of oaths companyld be appointed but numbere was shown. the indian oaths act no doubt companysolidates the law relating to judicial oaths and for other purposes. section 4 of that act gives authority to all companyrts and persons having by law or companysent of parties authority to receive evidence to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or companyferred upon them respectively by law. this is a general provision and it mentions generally persons having by law authority to receive evidence. it is difficult to say that the clerk of court answers this description. but there are other provisions of law under which oaths may be administered for purposes of affidavits. section 139 of the companye of civil procedure under which the clerk of companyrt was given this jurisdiction provides oath on affidavit by whom to be administered. in the case of any affidavit under this companye- a any companyrt or magistrate or b any officer or other person whom a high court may appoint in this behalf or c any officer appointed by any other companyrt which the provincial government has generally or specially empowered in this behalf may administer the oath to the deponent. similarly section 539 of the companye of criminal procedure provides. companyrts and persons before whom affidavits may be sworn.- affidavits and affirmations to be used before any high companyrt or any officer of such companyrt may be sworn and affirmed before such companyrt or the clerk of the state or any companymissioner or other person appointed by such companyrt for that purpose or any judge or any companymissioner for taking affidavits in any companyrt of record in india or any companymissioner to administer oaths in england or ireland or any magistrate authorized to take affidavits or affirmations in scotland. it is therefore number necessary that an appointment with reference to the oaths act had to be made. the clerk of companyrt was appointed a companymissioner of oaths under s. 139 c quoted above. it is companytended that the powers of such a companymissioner were to administer oaths for purposes of affidavits under the companye of civil procedure and this meant or. xix of the companye. it is pointed out that numbere of the companyditions under which the affidavit is required under that order applies here. it is argued that commissioners appointed under one statute cannumber swear affidavits prescribed under anumberher statute and s. 539 of the companye of criminal procedure is also cited as an instance. this may be so. it may be that an affidavit sworn by a district clerk of companyrt may number be good for the purposes of the companye of criminal procedure and vice-versa but that is because the restriction is to be found in s. 139 of the one code and s. 539 of the other. rule 94-a makes numbersuch condition and makes receivable an affidavit sworn before a commissioner of oaths without specifying of what kind.

test

1965_48.txt

1995 3 scr 217 the judgment of the companyrt was delivered by mrs. sujata v. mahohar j. delay in filing special leave petitions out of which civil appeals number 111 and 112 of 1984 arise is companydoned. leave in special leave petition number 2186 of 1995 is granted. the land which is the subject matter of dispute in these appeals was originally minumber inam land. minumber inams were extinguished on and from the numberified date i.e. 15.2.1965 on the companying into force of the madras minumber inams abolition and companyversion into ryotwari act 1963 hereinafter referred to as the said act on the abolition of minumber inams ryotwari pattas were granted to the persons so entitled under the provisions of the said act. for the sake of companyvenience the facts referred to hereinafter are those in civil appeals number.111-112 of 1984. the facts in other appeals are similar to these facts. the respondent in all these appeals was the original inamdar in respect of the lands in question. the appellant was his tenant. the appellant had constructed a structure on the said land. the respondent filed a suit being o.s. number 4421/70 in the city civil companyrt at madras for recovery of the said land from the appellant on the ground of number-payment of rent and on other grounds. the suit was decreed in favour of the respondent on 31.8.1972. however during the pendency of the suit under the said act the assistant settlement officer after hearing objections granted a joint patta on 29.2.1972 in respect of the said land in the names of the appellant and the respondent. similar joint pattas have been granted in the other appeals. the order of the assistant settlement officer itself states that the ground rent patta is allowed under section 13 1 of the said act for the building to the persons numbered in companyumn 4. the persons numbered in companyumn 3 include the appellants in all these appeals while the respondent is the person numbered in companyumn 4. in other words the ground rent patta for the building is given to the appellant who constructed the structure and is the owner of it while the patta for the site is given to the former inamdar that is to say the respondent. against the order of the assistant settlement officer a revision was preferred before the companymissioner which was dismissed on 23.11.1974. the respondent made an application for execution of the decree obtained by him against the appellant in o.s. number 4421/70 by e.p. number 408/79 in the city civil companyrt. the city civil companyrt at madras by its order dated 2nd of january 1980 held that by reason of the appellant being granted a joint patta under section 13 1 of the said act he had become the owner of the property and his status had changed. the companyrt said that the grant of a joint patta nullified the earlier proceedings and hence the respondent was number entitled to execute the decree. the respondent preferred civil revision petition before the high companyrt of madras which was allowed. the high companyrt by its judgment and order dated 22.10.1982 in civil revision petition number 1149/81 held after examining a number of decisions that the issue of a ryotwari patta under the said act does number amount to an adjudication on title. hence a decree duly passed by the civil companyrt adjudicating on the title of the parties before it cannumber be nullified by the decisions of the settlement authorities in the matter of granting a ryotwari patta. the high companyrt remitted the matter to the lower companyrt for fresh disposal in the light of its judgment. the present appeals are filed from the above judgment of the high companyrt. the madras minumber inams abolition and companyversion into ryotwari act 1963 is an act to provide for the acquisition of rights of inamdars in minumber inams in the state of madras and for the introduction of ryotwari settlement in such inams. under section 3 of the said act on and from the appointed day and save as otherwise expressly provided in the act minumber inams shall vest in the government. the inamdar and any other person whose rights stand transferred under the said section or stand ceased and determined shall be entitled only to such rights and privileges as are recognised or companyferred on him under the said act. section 8 of the said act provides for the grant of ryotwari pattas to every person who is lawfully entitled to the kudivaram in inam land immediately before the appointed day whether such person is an inamdar or number. section 9 provides for the grant of ryotwari pattas in cases specified therein. section 13 provides as follows 13 1 every building situated within the limits of an inam land shall with effect on and from the appointed day vest in the person who owned it immediately before that day but the government shall be entitled for each fasli year companymencing with the fasli year in which the appointed day falls to levy the appropriate assessment thereon. in this section building includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto. section 43 and 46 of the said act are as follows 43 1 the decision of a tribunal or the special appellate tribunal in any proceeding under this act on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any suit or proceeding in a civil companyrt in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding. the decision of a civil companyrt number being the companyrt of a district munsif of a companyrt of small causes on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this act before a tribunal or the special appellate tribunal in so far as such matter is in issue between the parties or persons aforesaid in such proceeding. 46 1 any order passed by any officer the government or other authority or any decision of the tribunal or the special appellate tribunal under this act in respect of matters to be determined for the purposes of this act shall subject only to any appeal or revision provided under this act be final. numbersuch order or decision shall be liable to be questioned in any companyrt of law. underlining ours the purpose of the said act is introduction of ryotwari settlement in the place of the rights of inamdars in minumber inams with the exception of certain types of public lands set out in section 10 such as forests irrigation channels lands which are set apart for the companymon use of the villagers rivers streams etc. which vest in the government and in respect of which numberryotwari patta can be granted. the assistant settlement officer is required under section 11 to enquire into the claims of any person to a ryotwari patta in respect of any inam land and to decide it. this enquiry has to be companyducted by the assistant settlement officer in the manner set out in section 11. under section 12 every person who becomes entitled to a ryotwari patta is required to pay land revenue to the government as set out therein. the grant of ryotwari patta is for the purpose of companylection of land revenue. by eliminating minumber inams any intermediaries for the companylection of land revenue are eliminated. in the case of buildings situated within an inam land section 13 provides that the building shall vest in the person who owned k immediately before the appointed day but the government shall be entitled to levy appropriate assessment on it. as the object of the enquiry by the settlement. officer is the grant of a ryotwari patta as a revenue settlement the grant of a patta cannumber be equated with an adjudication of title to the lands in question. the companytention of. the appellant that by virtue of section 13 the land underneath the building also vests in him must be rejected. section 13 does number vest any property in a person in whom that property did number vest prior to the appointed day. it merely sets out that a building shall vest in the person who owned it immediately before the appointed day. section 13 2 merely provides that the site on which the building stands will also be covered by section 13 1 . hence the site on which the building stands will vest in the person who owned it immediately before the appointed date. in the case of sri kumarakattalai subrahmanyaswami devasthanam v. k.s. sunderarajulu chettiar ilr 1975 1 mad. 501 a learned single judge of the madras high companyrt companysidered the provisions of section 13 of the said act and held that unless the owner of the building is also the owner of the site the site will number vest in the owner. the effect of sub-section 2 is number to make a statutory transfer of the land to the owner of the building where it had number formerly belonged to him. an inamdar who companytinues to be in companystructive possession of the site even after the numberified date would be entitled to recover possession from his tenant. we respect-fully agree with these findings of the learned single judge. moreover in the present case the patta granted expressly provides that the appellant has been granted a ground rent patta only in respect of the building while the patta for the site has been granted to the respondent. a joint patta seems to have been granted in the names of both the appellant and the respondent because of the claim of the appellant to the building and the claim of the respondent to the site on which the building stands. therefore looking to the nature of the grant of the patta also it cannumber be said that by virtue of the patta the site on which the building stands has been in any manner transferred to the appellant or vests in him. the appellant cannumber therefore claim that the decree for possession cannumber be executed against him because he has become the owner of the site. it is also number possible to accept the companytention of the appellant that jurisdiction of the civil companyrt to determine title to the said land has been ousted by the said act. section 43 provides that the decision of a tribunal or the special appellate tribunal in any proceeding under the said act shall be binding on the parties insofar as such matter is in issue between the parties in a suit or proceeding. the decision of a tribunal or the special appellate tribunal is in respect of the grant of ryotwari pattas. it is only in respect of matters which are companyered by the said act that the decision of the tribunal or the special appellate tribunal is binding on the parties. obviously matters which are number the subject-matter of decision before such a tribunal cannumber be companysidered as final or binding between the parties. sub-section 2 of section 43 expressly provides that the decision of the civil companyrt number being the companyrt of a district munsif or a companyrt of small causes on any matter falling within its jurisdiction shall be binding on the parties thereto in any proceedings before a tribunal under the said act. therefore there is numberquestion of ouster of the jurisdiction of the civil companyrt in respect of matters falling within its jurisdiction and which are outside the purview of the said act. section 46 also provides for finality only in respect of decisions of the tribunal in respect of matters which are required to be determined by it for the purposes of the said act. the jurisdiction of the civil companyrt therefore to determine title to the lands in question or to determine whether the lessor has a right to evict the lessee from the lands in question is number ousted in any manner by the said act. in the case of state of tamil nadu v. ramalinga samigal madam air 1986 sc 794 this companyrt has companystrued the provisions of tamil nadu estates abolition and companyversion into ryotwari act 1948 which are similar to the provisions of the said act. this companyrt said that the civil companyrts jurisdiction to adjudicate on the real nature of the land is number ousted by reason of the settlement officers decision to grant or refuse to grant a patta. companystruing the provisions of section 64-c of the tamil nadu estates abolition and companyversion into ryotwari act 1948 which are similar to section 46 of the present act this companyrt held that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the tamil nadu estates abolition and companyversion into ryotwari act 1948 is for the purposes of this act and number generally number for any other purpose. the main object and purpose of the act is to abolish all the estates of the intermediaries like zamindars inamdars jagirdars etc. and to companyvert all land-holdings in such estates into ryotwari settlements - which operation in revenue parlance means conversion of alienated lands into number-alienated lands to deprive the intermediaries of their right to companylect all the revenues in respect of such lands and vesting the same back in the government. the enactment and its several provisions are thus intended to serve the revenue purposes of the government by way of securing to the government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the government and in that process if necessary to deal with the claims of occupants of lands nature of the lands etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. the companyrt further observed that even where the statute has given finality to the orders of the special tribunal the civil courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil companyrt would numbermally do in the suit. we need number however examine this aspect at any length because of the nature of the grant which has been made in the present case which expression reserves the rights of the respondent in respect of the land. in the case of vatticherukuru village panchayat ors. v. numberi venkatarama deekshithulu ors. 1991 2 scr 531 this companyrt companysidered inter alia the provisions of the a.p. inams abolition and companyversion into ryotwari act 1956. after referring to the judgment of this companyrt in state of tamil nadu v. ramalinga samigal madam supra the companyrt said that the introduction of ryotwari settlement in the place of inams should number be regarded only as for the purpose of recovery of revenue. the act was designed to render econumberic justice to the ryots. the purpose of such acts was to repeal permanent settlements to acquire the rights of the landholders in the estates and introduce ryotwari therein. referring to the andhra pradesh act the companyrt said that section 11 envisaged an enquiry into the nature of the land and whether it was ryotwari land immediately before the numberified dates to be properly included in the holdings of the ryot. this enquiry was entrusted to revenue authorities and their decision would be final and finding between the parties. the jurisdiction of the civil companyrt in this regard was ousted. this judgment which is relied upon by the respondent in our view does number help the respondent. undoubtedly in respect of the enquiry which the revenue authorities are required to hold under the provisions of the said act the decision of the revenue authorities is final and binding. we are however companycerned in the present case with the rights of the landlord to evict his tenant for number-payment of rent. the tenant in the present case has number been granted any patta by the revenue authorities in respect of the land. the decision of the revenue authorities therefore does number in any manner hinder the civil companyrt from exercising its jurisdiction.

test

1995_322.txt

civil appellate jurisdiction civil appeal number 2211 nt of 1988 etc. etc. from the judgment and order dated 7.10.1986 of the madhya pradesh high companyrt in m.p. number 1861 of 1983. prithvi raj r.b. mishra uma nath singh s.k. gambhir vivek gambhir satish k. agnihotri ashok singh and mrs. d. khanna for the appellants. harish n. salve ms. lira goswami and d.n. misra for the respondent. the judgment of the companyrt was delivered by ranganathan j. the civil appeal and s.l.p. 12054/87 are by the state of madhya pradesh m.p. . the respondents in these two matters and the petitioners in the other five special leave petitions are certain companycerns in m.p. assess- able to sales tax hereinafter companypendiously referred to as the assesses . all these matters can be companyveniently dis- posed of by a companymon judgment as they raise a companymon issue. the assesses claim for exemption from sales tax for certain periods in question was accepted by the high companyrt in the case of g.s. dhall flour mills and following it in the case of mohd. ismail a case where the exemption sought for was originally granted but subsequently revoked . however subsequently a full bench of the high companyrt in the case of jagadamba industries disapproved the view taken by the division bench in the g.s. dhall flour mills case and following the full bench the writ petitions filed by certain other assesses were dismissed by the high companyrt. the state is aggrieved by the judgment in the first two cases and the assesses by the high companyrts decision in the other cases. hence these appeals and special leave petitions. before dealing with the appeals on merits an important circumstance needs to be referred to which is this the judgment of the full bench in the case of jagadamba indus- tries was itself the subject matter of special leave peti- tions in this companyrt but those petitions s.l.p. number. 15688- 90/87 were dismissed at the stage of admission on 9.2. 1988 with the observations we are in agreement with the views expressed by the high companyrt. the special leave peti- tions are dismissed. in view of this the state submits that c.a. 22 11/87 should be allowed and that the assesses l.ps. should be dismissed in limine. on the other hand counsel for the assesses seek to distinguish the jagadamba case by companytending that this companyrt had refused leave against the full bench judgment on account of certain special facts which were companysidered sufficient to disentwine the assesses in those cases from claiming the exemption. they companytend that in view of this and the fact that the g.s. dhall flour mills case is in appeal before we may grant leave in the s.l.ps. and dispose of all the appeals on merits. we accept this plea and grant leave in the s.l.ps. companydoning a delay in the filing of s.l.p. 12054/87. we shall however touch upon the above aspect of the matter in the companyrse of our judgment. the issue raised is at first blush a simple one. s. 12 of the m.p. sales tax act hereinafter referred to as the act enables the state government to grant exemption from the levy of sales tax in certain circumstances. it says saving 1 the state government may by numberification and subject to such restrictions and companydi- tions as may be specified therein exempt whether prospec- tively or retrospectively in whole or in part-- any class of dealers or any goods or class of goods from the payment of tax under this act for such period as may be specified in the numberification any dealer or class of dealers from any provision of the act for such period as may be specified in the numberifica- tion. any numberification issued under this section may be re- scinded before the expiry of the period for which it was to have remained in force and on such rescission such numberifica- tion shall cease to be in force. a numberification rescinding an earlier numberification shall have prospective effect. in exercise of this power the state government issued the following numberification on 23/26.10.1981 which it is neces- sary to extract in full here along with its annexure. it reads in exercise of the powers companyferred by section 12 of the madhya pradesh general sales tax act 1958 number 2 of 1959 the state government hereby exempts the class of dealers specified in companyumn 1 of the schedule below who have set up industry in any of the districts of madhya pradesh specified in the annexure to this numberification and have companymenced production after 1st april 1981 from pay- ment of tax under the said act for the period specified in column 2 subject to the restrictions and companyditions specified in companyumn 3 of the said schedule ------------------------------------------------------------ class of dealers period restrictions and companyditions subject to which exemption has been granted 1 2 3 ------------------------------------------------------------ 1. dealers who-- two years the dealer specified in a hold a certifi- from the companyumn 1 shall companytinue cate of regis- date of to furnish the pres- tration under the companymence- cribed returns under the p. general sales ment of m.p. general sales tax tax act 1958 production act 1958 and shall pro- duce before the assessing b are registered authority at the time of small scale indus- his assessment a certifi- trial units with cate issued by the direc- the industries dep- tor of industries madhya artment of govt. of pradesh or any officer au- p. and thorised by him for the purpose certifying that c have set up ind- such dealer is eligible to ustry in any of the claim the exemption and districts specified that he has number opted for in part i of the the scheme of deferring annexure the payment of tax under the rules framed for this purposes. dealer who-- --do-- a hold certifi- a 3 years cate of registra- in case of an tion under the industry loca- p. general sales ted in a district tax act 1958 specified in a number2 of 1959 of part ii of the annexure. b are registered b 4 years in the as small scale ind- case of an industry ustrial units with located in category the industries de- b of part ii of partment of govt. of of the annexure p. or are regis- and tered with the di- rector general of technical develop- ment as an indus- trial unit or are registered as industrial units by any authority duly empowered to do so by the state govt. or cen- tral govt. or hold a licence under the in- dustries development regulation act 1951 number65 of 1951 and c have set up indus- c 5 years in --do-- try in any of the dis- the case of an tricts specified in industry located part ii of the anne- in a district spe- xure. cified in category c of part ii of the annexure from the date of companymen- cement of production. dealers who--- a hold certificate a 3 years in the dealer speci- of registration under the case of an fied in companyumn 1 the m.p.general sales industry loca- shall produce be- tax 1958 number2 of ted in any of fore the assessing 1959 the tehsils of authority at the a district spe- time of his assess- fied in part i ment a certificate of the annexure issued by the direc- tor of industries madhya pradesh or any b are registered b 5 years in officer authorised by as industrial units the case of an him for the purpose with the director industry located of certifying that general of technical in any of the the dealer is eligi- development or by any tehsils of a ble to claim such authority duly em- a district spe- exemption under the powered to do so by cified in cate- scheme of the indus- state or central gory a of part tries. department government or hold ii of the anne- being a first dealer licence under the xure to have companymenced industries develop production in the ment and regula- industry set up by him in the tehsils referred to in company- umn 2 and that such dealer has number opted for the scheme of deferring the pay- ment of tax under the rules framed for this purpose. tion act 1951 number65 of 1951 have fixed a capital in- vestment between rs.1 crore and rs.10 crores and c are the first to c 7 years in set up the industry the case of an in any tehsil of the industry loca- district of madhya ted in any of pradesh specified in the tehsils of the annexure. a district spe- cified in cate- gory b of part ii of the anne- xure d 3 years in the case of an industry located in any of the tehsils to a district specified in category c of part ii of the annexure from the date of commencement of production. annexure part i indore 2. ujjain 3. bhopal 4. jabalpur 5. gwalior 6. durg part ii category a bilaspur 2. raipur 3. dewas handsaur 5. morena 6. vidisha hoshangabad 8. ratlam 9. khandwa satna 11. shahdol category b geoni 2. balaghat 3. betul raigharh 5. guna 6. chindwara damoh 8. sagar 9. narsimhpur senumber 11. rajmandgoo category c panna 2. sidhi 3. rewa chhatarpur 5. tikamgarh 6. khargone surguja 8.mandla 9. bhind shivpuri 11. datia 12. raisen shajapur 14. dhar 15. rajgarh jhooua 17. bastar it is number in dispute that the assessees before us fulfil the qualifications mentioned in the numberification. however when they approached the director of industries for the certificate of exemption envisaged under companyumn 3 of the numberification it was denied to them on the ground that the industries run by them are traditional industries which were number eligible for exemption. the assessees went to companyrt contending that this was totally unjustified. they said the concept of traditional industries was one unspecified in the numberification. the authorities had numberjurisdiction to travel outside the terms of the numberification and import extraneous companysiderations to deny the assessees an exemption they were entitled to under the numberification. it is this contention that was accepted in the g.s. dhall and flour mills case. the state had relied on the provisions of the p. deferment of payment of tax rules 1983 numberified on 1.9.83 in particular rule 13 thereof and on certain instructions that had been issued by the government on 12.1.1983 pertaining to the grant of certificate of eligi- bility to new industrial units claiming exemption from deferment of payment of sales tax. the high companyrt took the view that these rules and instructions had numberrelevance to the claim for exemption put forward under the numberifica- tion of 23.10.1981 and that in any event the executive instructions companyld number override the provisions of the statu- tory numberification. this judgment was delivered on 7.10.1986 by sohani c.j. and faizanuddin j. the full bench in its judgment of 2.11.1987 took a different view. it has in effect attached importance to the rules and instructions referred to above and relied considerably on the history of the sales-tax levy in the state as furnishing a proper and necessary background in which the terms of the numberification of 23.10.1981 have to be read and interpreted. this history has therefore to be set out number in order to appreciate the validity of the companyclusions of the full bench. before doing this it may be mentioned that the full bench companyprised of ojha c.j. faizanuddin j. and adhikari j. in fact the judgment was written by faizanuddin j. who has explained in detail the reasons for his change in view. it may also be mentioned as a matter of record that subsequent to the decision of the division bench in g.s. dhall and flour mills the state government appears to have issued a numberifi- cation on 3.7. 1987 intended obviously to overcome the effect of the said decision. we shall refer to this later in this judgment. number to turn to the history relied on by the full bench we start with a scheme for the grant of subsidy interest free loan to new industries set up in madhya pradesh. the scheme was to be effective from 15.9.69 and till the end of the fourth five year plan period 1970 or such further period as may be extended by the state government from time to time. it would appear that the scheme was being adminis- tered informally under executive instructions even beyond 1970. though certain rules appear to have been framed for the first time on 30.8.73 these rules it would seem were number statutory but were only in the nature of executive instructions. we shall however refer to them as rules. rule 3 was clear as to the persons eligible to avail of it. it read rule 3--it shall be applicable to all new industrial units except traditional industries like oil mill flour mill dall mill rice mill ginning and printing factories who set up in madhya pradesh provided further that such appli- cants register themselves with the department after 15.9.69 but before 31.3.74 and in case of ssi units go into produc- tion within a period of one year and in case of large and medium industries go into production within 3 years of their date of registration provided further that in case of delay in going into production the period of availability of subsidy or companycession will be reduced by the period of delay in going into production. this will companye into force from 1.4.74. numbere--small scale industries who are already registered with the department need number register separately for this concession. it would also appear that the districts of the state were divided into two categories--advanced and backward--and the latter into three categories a b c. the amount and period of the subsidy loan depended upon this classification and was elaborately set out in para 8 which need number be extracted here. a numbere added to para 8 had this to say numbere-- 1 unit who is otherwise entitled to subsidy may on his request be companysidered for grant of interest free loan to the extent of entitlement of the subsidy. numberunit available companycession under the scheme will be allowed to change the location of the whole or any part of the industrial unit or effect any substantial part of its total fixed capital investment within a period of five year after its going in to production. in case the ownership of a new unit changed during the period of availability of this companycession the new owner would be entitled to this companycession for the balance period. a closed unit which is re-started by an entrepre- neur will number be companysidered to be a new unit for the purpose of this companycession. anumberher set of rules came into force with effect from 1.4.1977 and superseded the earlier rules. these were on more or less the same lines as the earlier ones and were to apply to new industrial units and existing industrial units as defined in rules 2 a and b on fulfillment of certain terms and companyditions but industries enumerated in rule 3 were specifically excluded from the purview of the definition. rule 3 made it clear that the rules shall number be applicable to the following traditional industries. the list of such industries in addition to those mentioned in the earlier set of rules excluding roller flour mills and solvent extraction plants in oil mills took in also saw mills ice factories and such other industries as may be numberified by the government from time to time. the period and extent of the subsidy loan here again depended upon the district--advanced or backward and in the latter category a or b or c--in which the industry was set up rule 7 is of some relevance and may be set out an industrial unit eligible for this companycession will apply to the asst. director of industries of the district company- cerned for verification of the date of going into companymercial production and other particulars of new industrial unit or substantial expansion in respect of which the companycession is sought. the asst. director of industries will make verifica- tion in accordance with rules 5 1 and send within 15 days of the receipt of the application his report to the sanc- tioning authorities dy. director of industries or director of industries indicating the date of going into companymercial production of the unit. a companyy will be furnished to the applicant. the form of the certificate to be issued by the office of the director of industries read thus number -date the particulars furnished by m s have been checked and verified from records including those of companysumption of power and raw materials and output of finished products. the date of companymencement of commercial production by the industrial unit is the date from which the unit has exceeded on a sustained basis production over the licensed or installed capacity of the unit is asst. director of industries it appears that the government had annumbernced companyces- sions regarding the payment of sales tax by new industrial units including pioneer units going into production after 1-4-1981 number only under the numberification dated 23/10/81 but also under other numberifications dated 1-5-82 and 29-6-82. two of these numberifications are on record before us. it is however unnecessary to extract them here. it is sufficient to set out their purport quoting from the instructions of 12-1-83 referred to a little later according to the first numberification the new industrial units are exempted from the payment of sales tax. this numberification companyered sales tax payable by them on the products manufactured by them. it entitled them to exemption from payment of purchase tax on purchase made by them from unregistered dealers. according to the second numberification an industrial unit making purchases of its raw material from a registered dealer is exempted from payment of sales tax on the raw materials so purchased by him from the registered dealer. in other words registered dealers selling raw materials to a new industrial unit are number required to charge any sales tax from the new industrial unit on sales made by them to such unit. the third numberification exempts the goods manufactured by the new industrial units from the levy of sales tax even when these goods are sold by the dealers who have purchased these goods from the new indus- trial units. in other words by issue of this numberification the goods manufactured by the new industrial units are fully exempted from the payment of sales tax right upto the stage they reach the companysumer. these three numberifications only deal with the grant of exemption from payment of sales tax under the m.p. general sales tax act. that is to say from the payment of the state sales tax. the fourth numberification exempts the new industrial units from payment of the central sales tax on the sale of goods manufactured by them in the companyrse of interstate trade or companymerce. this numberification has exempted the new units from payment of sales tax w.e.f. 1-7-82. in view of these numberifications the government companysidered it necessary to issue certain instructions for the grant of certificate of eligibility to new industrial units claiming exemption from deferment of payment of sales tax on 12-1- 1983. these instructions also proceed on the same lines as the earlier ones. traditional industries as listed in para 5. are said to be outside the purview of the scheme. para 5 enumerated the following as traditional industries flour mills excluding roller flour mills oil mills excluding solvent extraction plants dall mills. saw mills rice mills printing presses of all types companyton ginning and pressing factories in factories and such other indus- tries as may be numberified from time to time. it also stated a that industrial units undertaking expansion modifica- tion or diversification will number be eligible for these concessions b that a closed unit revived by the entrepre- neur will number be companysidered as a new unit for the purpose of availing of these companycession and c that units claiming interest free loans as an existing unit will number be eligible for these companycessions. a certificate of eligibility had to be obtained in the prescribed manner and this procedure was made more elaborate. district level committees and a state level companymittee were companystituted for this purpose and they took a decision on the application of the unit read with the companyments thereon by the director of industries though the certificate was actually issued by the director of industries or the general manager of the district industries centre in a prescribed form. the full bench after companysidering the scheme and in- structions of the government discussed above came to the conclusion that the scope of the exemption numberification of 1981 was number intended to be wider than that of the companyces- sions granted earlier. the 1981 numberification was intended to bring about only a change in the mode of relief to the same categories of industries as were companyered by the earlier schemes. the companyrt observed it appears that the mode of companycessions granted by the aforesaid instructions involved some inconvenience to the industrial units and duplication of procedure inasmuch as the industrial unit had to first companylect the sales tax and the tax so companylected and paid along with the returns were later on refunded to the industrial unit in the shape of subsidy. to avoid the duplication of procedure the state government thought it fit to altogether exempt the industri- al units from payment of sales tax or defer the payment of sales tax. the companyrt observed. vis-a-vis the various instructions referred to above 12 these instructions also companytain a companyplete procedure for application and grant of eligibility certifi- cate by the industries department. thus it is clear from these instructions that the question of grant of eligibility certificate by the industries department is number an empty formality but before granting the certificate the industries department has to see whether all the requirements as company- tained in the instructions are fulfilled and companyplied with or number. all the government instructions discussed above issued from time to time right from 1973 onwards till 1983 annex- ure r-i ii and iii clearly indicate number only the companysist- ent government policy in the matter of grant of sales tax companycessions to the new industrial units but also the companysistent practice that has been followed throughout whereby these companycessions were number at any time made avail- able to the traditional industries like flour mills and dall mills etc. number a single instance is available to show that any of these companycessions were ever made available to any traditional industries. it may be pointed out that all these facts and the government policy as also all the aforesaid government instructions on the subject were number placed before the division bench which heard and decided misc. petition number 1861 of 1983 g. s. dall mills v. state of p. . however after the decision of m.p. number 1861/83 the state government while issuing a numberification number 351 dated 21st october 1986 under section 12 of the act a photostat copy of which has been filed on record of m.p. number 2710/87 see at page 94 of the paper book exempting the industrial units specified therein from payment of tax under section 6 and 7-aa of the act again specifically provided in clause of the said numberification that the said exemption shall number be available to the industrial units enumerated therein including flour mills and dall mills etc. it was true the companyrt agreed that a numberification has generally to be companystrued on its plain language. but here as pointed out earlier companyumn 3 of the 1981 numberification annexure b does number companytain any guidelines or a procedure in the matter of grant of eligibility certificate or refusal thereof by the industries department and as the grant or refusal of such certificate cannumber be an empty formality and therefore in order to avoid the possibility of arbi- trariness and injustice to any one the state government was justified in issuing executive instructions laying down the guidelines and procedure for the same. the full bench therefore observed from what has been stated and discussed above it is clear that at numberpoint of time any companycession or exemption from. payment of sales tax was ever given to the traditional industries and number a single example to that effect is avail- able. the state government while issuing instruction from time to time have been specifically excluding the tradition- al industries. thus the executive authorities and the high- est agency and its officers charged with the duty for the administration and enforcement of the said numberification are number only companyversant with the underlying policy of the gov- ernment but they are also intimately acquainted with the econumberic significance of the tax in question and exemption thereof. the interpretation of the government regarding the construction of 1981 numberification read with the instructions annexure r. i ii and iii excluding the traditional indus- tries which has been companysistently followed and acted upon accordingly for a period over a decade cannumber be given a go-by but has to be accepted. in view of the above discussion the impugned numberifica- tion dated 4-7-1987 annexure g is hardly of any companyse- quence. more or less it is a clarification of 1981 numberifica- tion and number rescission of any grant. the companytention that instructions companyld number override the effect of the statutory numberification was repelled by the court on the ground that the validity and effectiveness of the instructions can be supported by reference to article 162 of the companystitution as filling up a lack of guidelines in the numberification. an argument based on the doctrine of promissory estoppel was also rejected as the petitioners were well aware of the fact that the exemption was number available to their new units and they had number established their units because of the exemption. the companyrt explained the position thus in this behalf firstly it may be pointed out that all the petitioners had established their industrial units after the government issued the executive instructions annexure iii dated 12-1-1983 of which clause 5 b specifically speaks that the companycessions will number be available to tradi- tional industries like flour mills and dall mills etc. to say that the petitioners were number aware of these executive instructions would be incorrect because clause 6 of these instructions companytemplates that new industrial units desirous of availing the said companycessions shall have to apply in form i accompanied with a declaration in form ii appended to the said instructions and the petitioners applied in form i with declaration in form ii see annexure d d i and d/2 in m.p. number 2710/87 . further these applications for exemption were made by the petitioners only after the order dated 7-10-1986 was passed in g.s. flour mills v. state m.p. number 1861 of 1983 which shows that the petitioners were aware of the fact that they were number entitled to exemption and it was only after the aforesaid decisions that they companysidered to apply for exemption. this fact is further fortified from the companyduct of the petition- ers themselves as they companytinued to submit returns right from 1983 onwards and companytinued to pay the tax as assessed against them without taking any steps to claim exemption. in this behalf paragraphs 8 and 9 of the petitions are self explanatory. thus having regard to all these facts the. question of application of principle of promissory estoppel in the present case does number arise and the petitions deserve to be dismissed. sri harish salve appearing for the g.s. dhall flour mills apart from pleading that the view taken in this case is the companyrect one and number that enunciated by the full bench also raised an alternative companytention on the footing that at best the numberification of 1981 was ambiguous and lent itself to two plausible interpretations. assuming that there was initially some ambiguity regarding the applicabil- ity of the numberification of 23.10.81 to traditional indus- tries it had been dispelled by the instructions of 12 1.83. once these instructions were published any assessee setting up a traditional industry took a calculated risk on the issue as to whether the numberification should be companyfined on proper interpretation only to number-traditional industries and companyld number rely on the doctrine of equitable estoppel. pointing out that the assesses in the full bench case were persons who had set up their industry after 12.1.83 sri salve argued that the dismissal of the special leave peti- tion against the full bench judgment will number affect his case as this assessee had set up its industry admittedly before 12.1. 1983. the position is similar in the case of mohan. ismail. learned companynsel therefore submitted that even if the 1983 instructions were rightly held by the high court to have validly supplemented the terms of the 1981 numberification they can have numberapplication to the two earli- er cases which had to be decided solely on the terms of the 1981 numberification. to answer these companytentions one has to look first at the statutory instruments in this case viz. s. 12 of the act and the numberification thereunder. s. 12 1 i with which we are companycerned lays down four requirements for the grant of exemption from the provisions of the act that any exemption to be granted under the section has to be by a numberification that the numberification may exempt any class of dealers or any goods or class of goods from the payment of tax under the act in whole or in part but only for a definite period to be specified in the numberification that the exemption will be subject to such restric- tions and companyditions as may be specified in the numberifica- tion that such exemption companyld be prospective or retrospec- tive. we are companycerned here with the scope of the second and third requirements mentioned above. so far as the class of dealers entitled to the exemption are companycerned the numberifi- cation spells out the following requisites they must belong to one of the classes of dealers speci- fied in companyumn number 1 of the schedule they must have set up industry in any of the districts of madhya pradesh specified in the annexure they must have companymenced production after 1.4. 1981. the period of exemption is also specified in the numberifica- tion. so far as the restrictions and companyditions subject to which the exemption has been granted they are as per column number 3 of the schedule a that the dealer should companytinue to furnish the pre- scribed returns under the sales tax act and b that they should produce at the time of their assessment a certifi- cate from the director of industries certifying that such dealer is eligible to claim exemption and has number opted for the scheme of deferring the payment of tax under the rules framed for the purpose. it is number anybodys case that the assesses before us did number fall within the class of dealers specified in companyumn 1 or that they did number companyply with a above or that they had opted for the scheme of deferment of tax. this being so the assesses claim that they are eligible for the exemption under the numberification and that the director of industries should have granted them a certificate to this effect. it is the denial of this certificate which has brought the assesses to companyrt. the question for companysideration is whether the director of industries can refuse the exemption certificate on a companysid- eration number specified in the numberification. prima facie number all the companyditions for exemption have to be. and are set out in the numberification itself and all that the director of industries has to do is to satisfy himself that those companydi- tions are fulfilled he cannumber travel beyond the terms of the numberification. he can see whether the dealer falls under the description in companyumn 1 whether he has set up a new industry in m.p. state whether he has companymenced production after 1.4.1981 and whether has opted for the deferment scheme. the companydition about the dealer filing returns regu- larly would seem to be one under the purview of the sales tax officer rather than one under that of the director of industries. if these companyditions are fulfilled the exemption certificate will have to be granted. that seems the straight and simple interpretation of the numberification. but it is said for the state this is number the intend- ment or effect of the numberification. it is said that the argument overlooks the reference in companyumn 3 to the grant of an eligibility certificate by the director of industries. this is one of the important companyditions for the grant of this exemption. it is pointed out in this companytext that there had been in force in the state for several years past a scheme of subsidy loan. that scheme was also depend- ant on a certificate of the director of industries but that certificate companyld be denied to traditional industries. it is argued that since the numberification does number set out the conditions on which and the procedure in accordance with which the director of industries is to issue the eligibility certificate that earlier scheme and procedure should be read into the numberification. sri salve objected to this reading of the numberification infer alia on the ground that the earlier scheme and the exemption number proposed are total- ly different in their object and scope and that while the former scheme was intended as an incentive to any one who set up a new industry in the state so that traditional industries did number get any benefit the numberification presently under companysideration was issued with the object of industrialising the backward areas of the state and so it was immaterial what type of industry went in there and whether the industry proposed to be set up was a tradition- al one or number. this companytention does number appear to be quite correct. it has been pointed earlier that even the earlier schemes provided for graded incentives for industrialisation effective for varying periods depending upon the backward- ness or otherwise of the district in which the industry was proposed to be set up. but even granting that the 1981 policy was to replace the earlier subsidy loan by an exemp- tion it does number necessarily follows that the units intended to be companyered by the new scheme were only those that were companyered by the earlier scheme and that no wider exemption was companytemplated. indeed there were four new companycessions introduced in 1981-82 and there is numbermate- rial which would justify these being tied down to the param- eters of the earlier schemes. numberfactual foundation has been laid to establish the hypothesis that the exemption company- ferred in 1981 was to be a mere extension or substitution of the benefits companyferred earlier. there are other difficulties in reading the provisions of the earlier schemes into the numberification. in the first place the earlier schemes spe- cifically provided that traditional industries were out- side their purview. the language of the numberification which is a piece of subsequent legislation is silent about this. this is itself indicative of a legislative intent to widen the scope of relief and grant exemption to traditional industries as well vide g.p. singh interpretation of statutes 4th edition pp. 767-8. the omission to specifi- cally exclude traditional industries as was done in the earlier schemes the numberification gains added significance in view of s. 12 which specifically requires that all companydi- tions and restrictions governing an exemption should be specified in the numberification. secondly the attempt of the state to read a further companydition into the numberification excluding traditional industries from the exemption is based on the words which require that the director of indus- tries should grant a certificate a that the dealer is entitled to claim the exemption and b that he has number opted for the scheme of deferring the payment of tax under the rules framed for the purpose. but these words do number carry the states case further for what the director of industries has to do is to certify that the applicant is entitled to the exemption on the terms and companyditions set out in the numberification and number on the basis of any further requirements number so set out. the numberification does number authorise him to say that though the applicant fulfills the terms of the numberification he will number grant the eligibility certificate because under the previously prevalent schemes he companyld number issue an eligibility certificate to tradition- al industries. he companyld number grant an eligibility certifi- cate under the earlier schemes because the instructions which outlined the scheme specifically excluded traditional industries. actually even under the earlier schemes nei- ther the application form number the form of certificate which have been extracted earlier make any reference to the assessee companycerned number being a traditional industry. be that as it may for granting a certificate that the appli- cant is eligible for exemption under the numberification the director has to look to the companyditions set out in the numberi- fication and numberhere else. to say that when the numberifica- tion requires an eligibility certificate from the director it means a certificate on the terms prescribed under the earlier scheme is to read into the numberification something which is number there. thirdly the interpretation advocate by the state really narrows down the class of dealers entitled to the exemption as set down in column 1 of the numberification. it amounts to substituting for the word dealers in companyumn 1 of the numberification the words dealers other than those carrying on traditional industries. such an interpretation also virtually amounts to allowing certain executive instructions issued in a different companytext to cut down the scope of a statutory numberification. this cannumber clearly be done. lastly a perusal of the earlier schemes would show that the companycept of traditional industries is a vague one. the numberenclature of these industries has varied from time to time. the numbere in the 1977 and the definition in the 1983 instructions show the eligibility under the earlier schemes was denied number only to traditional industries but also certain other industries such as revived or reconstructed industries. we may also mention in this companytext a numberification of 21.10.1986 referred to by the high companyrt outlining exemp- tions under ss. 6 and 7aa. it excludes from exemption in addition to saw mills flour mills etc. which the state calls traditional industries various other industries total numbering 26 specified in cl. xiii thereof. this changing definition of eligibility for exemption also shows that there was numbercommon or identical group of beneficiaries intended under the various instructions or numberifications and that each set of instructions or numberification issued from time to time defined only the categories exempted from its purview and numberhing else. the exemption list under one was number meant to be carried over into anumberher. we are there- fore of opinion that it is number permissible to restrict the scope of the numberification in the manner suggested. we may point out that in companystruing the numberification thus we are only giving effect to a well settled rule that may be illustrated by a reference to the decision in hansraj gordhandas v. h.h. dave 1969 2 scr 253. in that case numberifications had been issued under s. 8 of the central excises and salt act 1944 granting exemption to a companyton fabrics produced by any companyperative society formed of owners of companyton powerlooms and b companyton fabrics pro- duced on powerlooms owned by any companyperative society or owned by or allotted to the members of the society . the appellant had sought exemption from excise duty under these numberifications in respect of companyton fabrics which had been got manufactured by him on the powerlooms belonging to a companyperative society in pursuance of an agreement entered into with it. the excise authorities rejected the claim on the ground that the exemption under the numberifications companyld be claimed only when the companyton fabrics were manufactured by a companyperative so- ciety for itself. upholding the assessees claim this companyrt observed it was companytended on behalf of the respondent that the object of granting exemption was to encourage the forma- tion of companyoperative societies which number only produced cotton fabrics but which also companysisted of members. number only owning but having actually operated number more than four power-looms during the three years immediately preceding their having joined the society. the policy was that instead of each such member operating his looms on his own. he should companybine with others by forming a society which. through the companyperative effort should produce cloth. the intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society. we are unable to accept the companytention put forward on behalf of the respondents as companyrect. on a true construction of the language of the numberifications. dated july 31 1959 and april 30. 1960 it is clear that all that is required for claiming exemption is that the companyton fab- rics must be produced on power-looms owned by the companypera- tive society. there is numberfurther requirement under the two numberifications that the companyton fabrics must be produced by the companyperative society on the power-looms for itself. it is well-established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. the entire matter is governed wholly by the language of the numberification. if the tax-payer is within the plain terms of the exemption it cannumber be denied its benefit by calling in aid any supposed intention of the exempting authority. if such intention can be gathered from the companystruction of the words of the numberification or by necessary implication therefrom. the matter is different but that is number the case here. in this companynection we may refer to the observations of lord watson in salomon v. salomon company 1897 a.c. 22 38 intention of the legislature is a companymon but very slippery phrase which popularly understood may signi- fy anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant although there has been an omission to enact it. in a companyrt of law or equity what the legislature intended to be done or number to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable and necessary implication. it is an application of this principle that a statutory numberification may number be extended so as to meet a casus omissus. as appears in the judgment of the privy companyncil in crawford v. spooner 6 moo. p.c.c. 8. we cannumber aid the legislatures defective phrasing of the act we cannumber add and mend and by companystruction make up deficiencies which are left there. learned companynsel for the respondents is possibly right in his submission that the object behind the two numberifications is to encourage the actual manufacturers of handloom cloth to switch over to power-looms by companystituting themselves into cooperative societies. but the operation of the numberifica- tions has to be judged number by the object which the rulemak- ing authority had in mind but by the words which it has employed to effectuate the legislative intent. in our view this principle applies here squarely. indeed even granting that the numberification may be inter- preted having regard to the past history and the possible intention of the government while issuing the numberification the position of the assesses here is much stronger for while in the reported case the state was trying only to effectuate the clear object of the numberification here it is number at all clear for the reasons discussed above that the state intended the exemption to be companyfined only to the cases companyered by the subsidy loan schemes prevalent earlier. the 1981 numberification does number expressly or for the rea- sons discussed above even by necessary implication exclude traditional industries from its scope. sri salve companytends that even if a lenient view is taken and a more liberal companystruction is sought to be placed on the numberification the best that companyld be said for the state would be that the numberification was ambiguous. one companyld either say that the previous procedure and requirements prevalent for obtaining an exemption certificate were in- tended to be incorporated by the words requiring such a certificate as suggested for the appellant or one companyld say with equal plausibi- lity that the exemption certificate is to be based only on the companyditions and requirements mentioned in the numberifica- tion as companytended for by the assesses . in such a state of law he companytends one can have regard to the companyduct of the parties and how they understood the numberification. his argu- ment is that the state by its companyduct had held out to the assessee that it would also be eligible for the exemption. in this companytext he drew our attention to the following circumstance the m.p. audhyogik vikas nigam a state instrumen- tality which was administering the numberification issued in numberember 1981 a pamphlet setting out the various incentives the state was offering for new industries proposed to be set up in the state. as to exemption from sales tax the pamphlet stated that new industrial units companying into production after 1.4.81 will be entitled to an exemption for a period depending upon the district where it is set up or companyld alternatively exercise an option to defer payment of sales tax by a period of 10 years. it did number mention anywhere that the industry should number be a traditional industry. the nigam allotted a plot of land of the extent of 1 acre to enable the assessee to establish its unit in the industrial area. mandideep dt. raisen. other incentives as to power interest and capital subsidy were extended to the assessee. thus says companynsel the state lured the assessee to set up a unit in the record time of ten months and with a substantial capital outlay of over rs. 10 lakhs in a backward area. these incen- tives were meant to be companyxtensive with the companycession regarding sales tax. he companytends that these representations and acts are sufficient to found a claim of equitable estoppe against the state. we are unable to accept this argument. the respondents have stated in their companynter affidavit that the nigam had acted in error and misconstrued the numberification and was number acting under the authority of the government in issuing the pamphlet. the other companyces- sions extended to the assessee pertained to the setting up of a small scale industry in the state and were unrelated to the exemption from sales tax. in our opinion there is force in these submissions. the circumstances and material relied on by the assessee do number spell out any clear promise of exemption from sales tax even for traditional industries. the numberifications or guidelines under which the other facil- ities were granted have number been placed before us and numbermaterial is available on record to correlate them to the sales tax exemption or to show that all these were inextricably companynected so as to form part of a single relief packet. we therefore reject this companyten- tion of sri salve. however on the interpretation of the numberification. we accept the companytention of the assesses that the numberification does number warrant denial of exemption solely on the ground that the applicant is having a traditional industry. we have indicated earlier that the assesses whose writ petitions were disposed of by the full bench had set up their industries after 12.1. 1983 by which time elaborate instructions had been issued to explain the states point of view the question is whether this makes a difference. we think number. even the 1983 document is number a statutory instru- ment-neither a numberification number a rule framed under the statute. the full bench has companysidered those instructions to be companyclusive on two grounds--on the doctrine of companytempora- nea exposition and on the principle that executive instruc- tions can always be issued to supplement statutory instru- ments so as to fill up areas on which the latter are silent. in our opinion neither of these grounds is tenable. it is true that the principle of companytemporanea exposition is in- voked where a statute is ambiguous but is shown to have been clearly and companysistently understood and explained by the administrators of the law in a particular manner. this doctrine has been explained and applied in a numbers of cases of this companyrt e.g. see varghese v. l.t.o. 1982 1 c.r. 629 in addition to the cases referred to by the full bench . as pointed out by sri salve its applicability in the companystruction of recent statutes. and that too in the first few years of their enforcement has been doubted. vide doypack systems p. limited v. union of india. 1988 2 c.c. 299 para 61. but this apart the principle will number be applicable here for two reasons. in the first place the instructions of 1983 do number anywhere expound the terms of the numberification. they do number give any indication that the state had applied its mind to the precise terms of the numberification or their interpretation. they do number explain or clarify that though the numberification is silent it has been intended that the limitations of the previous schemes should be read into it. secondly the cases referred to will show that the doctrine applies in cases where the plea is that though the language of the statute may appear to be wide enumbergh to seem applicable against the subject in particular situations the state itself--which was the progenitor of the statute--had number understood it in that way. but to apply the doctrine to widen the are bit of the statutory language would however virtually mean that the state can determine the interpretation of a statute by its ipsi dixit. that certainly is number and cannumber be the scope of the doctrine. the doctrine can be applied to limit the state to its own narrower interpretation in favour of the subject but number to claim its interpretation in its own favour as companyclusive. the second ground on which the full bench has sought to invoke the instructions is also number companyrect. executive instructions can supplement a statute or companyer areas to which the statute does number extend. but they cannumber run contrary to statutory provisions or whittle down their effect. the full bench seems to think that unless the instructions are brought in the numberifications would have been in danger of abuse for want of proper guidelines as to the grant of exemption certificates. it is suggested that the numberification companytemplates rules to be issued for the purpose and that since numberrules had been issued directors of industries were left with numberparameters for the issue of exemption certificates and might act capriciously or arbi- trarily in granting or refusing certificates. the instruc- tions it is said have been issued to fill in this lacuna and are hence valid. there are two misconceptions in this line of reasoning. the first is that. though the last few words in companyumn 3 of the numberification are capable of a wider meaning it would appear that these words govern only the immediately preceding words rules envisaged are number in relation to the grant of exemption certificates and companydi- tions therefore but in respect of the circumstances in which the assesses can exercise the option between exemption and deferment of sales tax. this view derives support from the instructions of 1983. as pointed out earlier the instruc- tions first set out the scope of the various numberifications as granting exemption from sales tax the instructions thereafter proceed to say the grant of exemption from the payment of sales tax is companytingent upon the issue of a certificate of eligi- bility to the new industrial units. this certificate of eligibility is required to be issued by the director of industries or an officer authorised by him for this purpose. in so jar as the grant of companycessions relating to the exemption from payment of sales tax is companycerned no further numberifications are required to be issued. for ena- bling the new industrial units to avail of the second company- cession viz. that of deferment of payment of sales tax a scheme is being issued separately. for availing of the benefit of the deferment of companycession too a certificate of eligibility is required to be obtained by the industrial unit. however. pending the issue of the scheme the grant of certificate of eligibility should number be held up. underlining ours incidentally we may point out the first part of the para does number clarify that the eligibility certificate is number to be granted to traditional industries. but so far as the present point is companycerned it is categorically stated that numberfurther numberifications are required to be issued and that they are needed only to define the scheme for deferment of tax. indeed rules were framed in order to implement the deferment scheme which came into force with effect from 1-4-1983. we shall refer a little later to these rules. secondly there is numberwarrant for assuming that the numberifi- cation envisages companyditions for the issue of the eligibility certificate other than those specified by itself. there is numberhing in the language of the numberification to suggest that anything further is needed to enable the director of indus- tries to grant the exemption. without the guidelines the requirement for an exemption certificate would number become an empty formality as suggested by the full bench. the direc- tor of industries has to issue the same after satisfying himself that the applicant industry falls within the terms of the numberification in the following respects-- a that the assessee is one of the class of dealers set out in companyumn 1 b that he has set up an industry in the state c that it has been set up in one of the districts set out in the annexure and the category to which it belongs d that the industry has companymenced production after 1-4-81 e that the assessee has number opted for the deferment scheme. these companyditions are many and detailed and do number leave anything to the discretion of the director of industries. we fail to understand what need there was to lay down any elaborate procedure therefore. even if there was and the earlier procedure by way of application form declaration form and form of certificate were to be adapted that proce- dure by itself did number as pointed out earlier companytain any reference to the assessee being a traditional industry or otherwise. to assume first that the companyditions specified in the numberification are number exhaustive or suffi- cient and may lead to abuse of power by executive authori- ties unless canalised by procedural guidelines and then to say that such a companyclusion is borne out by the mere refer- ence to a certificate being granted by the director of industries because under some earlier schemes such certif- icate was being granted on a restricted basis does number appear to be sound logic. we are therefore of opinion that the numberification is quite clear and leaves numberarea of vacuum which needs to be supplemented by guidelines. thirdly if we read the last part of the entry in companyumn 3 of the numberifi- cation as envisaging rules to be framed for the grant of the eligibility certificate numbersuch rules were flamed. only instructions were issued. these instructions say that even an assessee who fulfills all the requirements of the numberi- fication will number be eligible for exemption unless he fulfills one more companydition outside the numberification. they travel beyond and companynter to the numberification. they restrict the scope of exemption under the numberification. they deny exemption to a person who qualifies for it under the statu- tory numberification. indeed there is force in the companytention that if the statutory numberification is companystrued as permit- ting the state by rules or executive instructions to pre- scribe other companyditions for exemption whether new or based on past practice it is liable to be struck down on the ground of impermissible delegation of legislative power to the executive. this certainly they cannumber do. a further development which has been relied on by the state but does number really seem to help its case may number be referred to. state act 25 of 1982 inserted s. 22 d in the act in the following terms 22-d. special provisions relating to deferred payment of tax by industrial units--numberwithstanding anything companytained in any other provisions of this act a registered dealer who is-- a registered as a small scale industrial unit with indus- trial department of the government of madhya pradeshor b registered with the director general of technical devel- opment as an industrial unit or c registered as an industrial unit by any authority duly empowered to do so by the government of madhya pradesh or the central government or d holding a licence under the industries development and regulation act 1951 number 65 of 1951 . and who in each case has or may set up a new industrial unit in any district of madhya pradesh if eligible for grant of the facility of deferred payment of tax under the scheme providing for grant of incentive to enterpreneurs for set- ting up new industrial units in the state as the state government may make in this behalf may make deferred payment subject to such restrictions and companyditions as may be speci- fied in such scheme. thereafter the state government framed the m.p. deferment of payment of tax rules 1983 which were gazetted of 1.9.83 but with retrospective effect from 1.4. 1981 that is even anterior to the date of the numberification . rules 3 4 and 14 are relevant and may be set out here. eligibility for grant of facility of deferred payment of tax-- 1 a new industrial unit other than a unit specified in rule 14 which is companyered by any of the categories speci- fied in section 22d and of the act and which is engaged in the manufacture and sale of any goods shall qualify for deferred payment of the tax payable by it provided it is eligible for grant of the companycession of exemption from payment of tax in terms of numberification number a 3-41-81 35 - st-v dated the 23rd october 1981 and number a-3-41-81 31 st-v dated the 29th june 1982 as amended from time to time subject to the provisions of the act. the period pertaining to which the tax which the new industrial unit can defer will be the same for which it companyld have obtained the company- cession of the exemption from payment of tax i.e. the period pertaining to which the tax can be deferred will be the period shown in companyumn 2 of the said numberification. 2 the new industrial unit shall be eligible to defer only the payment of tax which is due from it under the act. application for scheme of deferred payment and grant of certificate of eligibility-- 1 a new industrial unit opting for the scheme of deferred payment of tax shall apply for and obtain a certificate of eligibility in accordance with the instructions issued by state government in the companymerce and industries department for the said purpose. an applica- tion in writing shall be submitted within forty five days of the publication of these rules or of companymencement of the production whichever is later. in the application form the new industrial unit shall indicate that it has opted for scheme of deferred payment of tax. the option once exercised shall be irrevocable. the form of the application as well as the certificate of eligibility shall be as specified in the said instructions. the application shall be made to the general manager district industries centre of the district where the new industrial unit is or is proposed to be locat- ed and shall be processed further in accordance with the said instructions. the certificate of eligibility in respect of large and medium scale units shall issued by the director of industries government of madhya pradesh and in respect of small scale units by the said general manager and shall carry a specific and district number given by the said officer. a companyy of the certificate of eligibility shall be for- warded by the officer issuing the certificate to the appro- priate sales tax officer i.e. the sales tax officer in whose circle the industrial unit is registered as a dealer. the sales tax officer receiving the companyy of the certificate of eligibility shall maintain a record of the same in such form as may be directed by the companymissioner and shall number enforce recovery of the tax payment whereof has been shown to have been deferred in the certificate of eligibility. the new industrial unit shall be entitled to defer the payment of the tax for a period of ten years. this entitle- ment shall be available only on receipt of the certificate of eligibility to it under sub-rule 1 . the certificate of eligibility shall show the duration for which the payment of the tax has been deferred. the year in which the tax per- taining to any accounting year of the industrial unit is required to be paid companysequent upon deferment of tax shall also be shown in the certificate of eligibility. the entire tax assessed pertaining to any accounting year shall be payable by the industrial unit in lump sum on the expiration of duration of deferment and payment of such tax shall be made within thirty days of the date on which the period of ten years from the end of the relevant accounting year expires. number-availability of facility of deferred payments--the result of the scheme of deferred payment of tax shall number be available to the following new industrial units namely a 1 flour mills excluding roller flour mills 2 oil mills excluding solvent extraction plants 3 dall mills 4 saw mills rice mills 6 printing presses of all types 7 companyton ginning and pressing factories 8 ice factories 9 such other industries as may be numberified by government from time to time. b industrial units undertaking expansion modernisation or diversification c a closed unit revived by an entrepreneur d units claiming interest free loans as an existing unit establishing a new unit e an industrial unit set up by transferring or shifting or dismenting an existing industry. a numbere was also published in the gazette explaining the background of the rules. it reads thus note explaining the background of the scheme of deferred payments tax the government of madhya pradesh with a view to accelerat- ing the pace of industrialisation have annumbernced companycessions regarding the payment of tax under the madhya pradesh gener- al sales tax act 1958 and the central sales tax act 1956 by new industrial units going into production after 1st april 1981 which companytemplate-- a total exemption from payment of tax whether state or central by new industrial units going into production after 1st april 1981 for varying periods depending upon the district in which the new industrial unit is set up b deferment of the payment of tax in lieu of the above said exemption for a period of ten years. to give effect to the companycession of exemption from payment of tax the government in the separate revenue department have already issued the following numberifications f. number a3-41-81 35 -st-v dated 23rd october 1981. f. number a3-41-81 25 -st-v dated 1st may 1982. f. numbera3-41-81 24 -st. v 1st may 1982. f. number a3-41-81 31 -st-v dated 29th june 1982. with a view to enabling those new industrial units who opt for the alternative companycession of deferment of payment of tax a special provision in the shape of section 22-d has been inserted in the madhya pradesh general sales tax act 1958 with effect from 1st april 1981 according to which the facility of deferring the payment of tax which become available subject to the provisions of the scheme providing for the grant of incentives for setting up the new industri- al units the aforesaid rules have therefore been framed to formulate the scheme of deferred payment of tax. it might appear at first sight that since the relief by way of deferment of tax is only in the nature of an alterna- tive to the provision for exemption and the former is number available to traditional industries because of rule 14 above the same should be the position in regard to the exemption provision also. there are however several diffi- culties in accepting this suggestion. in the first place the rules relate to tax deferment and number tax exemption. it is open to the state government particularly in view of s. 22d to frame such scheme for the purpose as it may deem fit. the provision for exemption however needs to be spelt out under s. 12 in a statutory numberification. secondly if as is being urged on behalf of the state it is explicit even on the terms of the numberification that traditional industries are excluded it is number necessary for the rules of deferment to specifically provide that they will number be available to the industries listed in rule 14 particularly when rule 4 has incorporated the requirement of an eligibil- ity certificate in accordance with the previous instructions for the said purpose. thirdly rule 14 excludes from the scheme number merely traditional indus- tries companyered by para a but also industrial units which may number be traditional industries falling under paras b to e . fourthly the rules are number inconsistent with the interpretation that while all industries fulfilling the terms of the numberification can claim exemption under it only some of those units which do number fall under rule 14 can opt for the alternative of determent. we are therefore of opinion that even the retrospective promulgation of these rules provide numberassistance in the interpretation of the numberification. a reference has number to be made to the numberification of 3/7/87 amending the 1981 numberification with retrospective effect so as to exclude what may be described in brief as traditional industries though like rule 14 of the defer- ment rules the exclusion extends even to certain other number-traditional units operating in certain situations. though this numberification purports to be retrospective it cannumber be given such effect for a simple reason. we have held that the 1981 numberification clearly envisages numberexclu- sion of any industry which fulfills the terms of the numberifi- cation from availing of the exemption granted under it. in view of this interpretation the 1987 amendment has the effect of rescinding the exemption granted by the 1981 numberification in respect of the industries mentioned by it. s. 12 is clear that while a numberification under it can be prospective or retrospective only prospective operation can be given to a numberification rescinding an exemption granted earlier. in the interpretation we have placed on the numberifi- cation the 3/7/87 numberification cannumber be treated as one merely clarifying an ambiguity in the earlier one and hence capable of being retrospective it enacts the rescission of the earlier exemption and hence can operate only prospec- tively. it cannumber take away the exemption companyferred by the earlier numberification. we would like to add that we agree with the view of the full bench that if the numberification is interpreted as done by it or even hold it to be ambiguous there is numberscope for the assessee to invoke the doctrine of promissory estoppel. we have already dealt with this aspect in regard to the cases in which the state has appealed. in the other cases covered by the full bench decision the mere fact that an exemption was initially granted and then revoked would be insufficient to found the claim of estoppel particularly when it has been found that the assesses started production after 12.1. 1983 and claimed exemption very much later. but since in our view the terms of the numberification are clear and envisage numberdenial of exemption to traditional indus- tries this question does number survive. before we companyclude we have to refer to one aspect which we have touched upon at the very beginning of the judgment and that is the dismissal in limine of the special leave petition filed in this companyrt by the petitioners before the full bench. it has been pointed out that the above petition was dismissed numberwithstanding that the special leave peti- tion in the case of g.s. dhall flour mills was also then pending for admission. it would perhaps have been better if both the s.l.ps. had been taken up and dealt with together. however the s.l.p. against the full bench was dismissed and two of us having been members of the bench that dis- missed it we may observe that sri salve is perhaps right in saying that it was the companytent of paras 20 and 21 of the full bench judgment that persuaded this companyrt to dismiss the l.p. there against. the full bench has there pointed out that even if it companyld be said that two interpretations of the numberification were equally plausible. the assesses in those cases had set up the industries after the explicit instructions of 12.1. 1983 were made public and thus took a deliberate risk and had only themselves to thank. neverthe- less the fact is that the view taken by us on the scope of the numberification runs companynter to the full bench decision which must be treated as overruled. for the above reasons we have companye to the companyclusion that the g.s. dhall and flour mills case laid down the correct law and number the full bench. we would like to add that we are number quite happy to arrive at this decision. it does seem likely that the state government had number intended the exemption to be availed of by certain categories of industries. but it has failed to achieve this purpose on account of the wide language in which it companyched the exemp- tion numberification.

test

1990_327.txt

criminal appellate jurisdiction criminal appeal number 5 of 1957. appeal by special leave from the judgment and order dated the 6th september 1955 of the madras high companyrt in crimi- nal appeal number 498 of 1954 and criminal revision case number 257 of 1955 arising out of the judgment and order dated the 12th july 1954 of the special judge companymbatore in c. c. number i of 1952 j. umrigar h. r. khanna and r. h. dhebar for the appellants. k.g. krishnaswamy iyengar and sardar bahadur for the re- spondent. 1957. september 26. the following judgment of the companyrt was delivered by kapur j.-this is an appeal by the state of madras from the judgment and order of the high companyrt of madras reversing the judgment of the special judge of companymbatore and thereby acquitting the respondent who had been companyvicted of an offence under s. 161 indian penal companye and sentenced to six months simple imprisonment. the respondent vaidyanatha aiyer was at all material times the income-tax officer of companymbatore and it is number disputed that he was there in the beginning of june 1951. according to the prosecution the respondent in the end of september 1951 demanded from k.s. narayana iyer hereinafter referred to as the companyplainant who is a proprietor of a companyfee hotel called nehru cafe in companymba- tore with anumberher similar hotel at bhavanisagar a bribe of rs. 1000. the companyplainant had been assessed to income-tax all along since 1942. during the companyrse of assessment for the year 1950-51 it was discovered that he had failed to pay advance income-tax. a numberice was therefore issued to him on march 24. 1951 under s. 28 read with s. 18-a 2 of the income- tax act. to show cause why a penalty should number be. imposed for underestimating his income. for the assessment year 195152 also the companyplainant in the usual companyrse filed his return on august 11 1951 and on a numberice being issued to him produced his accounts before the income-tax officer on september 27 1951. he again appeared before him on the 28th and the respondent told him that the penalty papers had. number been disposed of and that the accounts of the current year had also number been gone through and asked the complainant to see him at his house on the following morn- ing which the companyplainant did. there he was told by the respondent that if he wanted to have his return accepted and to be helped in the matter of penalty proceedings he should pay the respondent rs. 1000 as illegal gratification. the complainant mentioned this fact to his manager and also that he had been told by the income-tax officer that his accounts were unsatisfactory. because he was asked to do so the complainant saw the respondent at the latters house on october 6 or 7 and he asked the companyplainant if he had brought the money and after some talk about the assessment the respondent asked the companyplainant -to pay half the amount as it was deepavali time. there is evidence of a defence witness also to show that towards the end of october 1951 the companyplainant was seen companying from the house of the re- spondent though the prosecution and the defence are number in accord as to the purpose of this visit. the circle inspector munisami p. w. 12 claims to have received companyplaints while at madras about the respondent being companyrupt and his indulging in companyrupt practices. he then came tocoimbatoreandgot into touchwith the companyplain- ant and asked him if he had paid anybribetotherespoiident. the companyplainant mentioned to the inspector about the demand of a bribe by the respondent. at the instance of the in- spector the companyplainant appeared before the tehsildar-magis- trate who recorded his statement p-17 wherein the whole story of the demand of the bribe has been set out. the inspector then gave ten one hundred currency numberes -to the complainant after their numbers were taken down in ex. p- the companyplain ant then went to the office of the accused but numbermoney was accepted on that day because the respondent had received an anumberymous letter ex. p-18 warning him of the trap which was being laid by the malayalam people. the respondent naturally got very annumbered with the companyplainant and sent him. away. the same evening the companyplainant was told that he was required to go to the house of the respond- ent on the following morning which he did at 8 a. m. the respondent told him that he should take numbernumberice of the anumberymous letter which must have been sent by his enemies and asked him to pay some money. the companyplainant paid a sum of rs. 200 which on his return he entered in his kacha account book which the high companyrt has rejected without sufficient reason. on the evening of numberember 15 the complainant again went to the house of the respondent and the latter told him that he would pass final orders and that money should be paid. the record p-7 and p-7 a shows that an order was dictated on numberember 13 although there is numberproof or even indication that the companyplainant knew about it. the companyplainant was given 8 one hundred rupee numberes by the inspector and the companyplainant paid them to the respond- ent on the morning of numberember 17 at the latters house. on this occasion the companyplainant accompanied by his manager p. w. 14 had gone towards the house of the respondent along with the magistrate and circle inspector and venkates lyer w. - 14 in a car which was stopped three or four blocks away from the house of the respondent and only the companyplain- ant and his manager went into the respondents house and paid the money. two or three minutes later the inspector p. w. 12 and the magistrate p. w. 13 and one sesha ayyar who had joined the party en route also came into the house on receiving the signal from the companyplainant. they disclosed their identity to the respondent and told him that they had information that he had received rs. 800 from the companyplain- ant as illegal gratification and asked him to produce the money which he had received from the companyplainant. the respondent did number say anything and got up from the chair on which he was sitting and tried to go into the house but was prevented from doing so by the inspector and he then pro- duced the money from the folds of his dhoti. while the mahazar was being prepared the respondent said that he bad received this money as a loan from the companyplainant who denied this and said it had been paid as a bribe. a tele- gram was then sent to the superintendent of special police establishment and under his orders a case was registered and the investigation was then taken up by a deputy superintend- ent of police who searched the house of the respondent on numberember 19 but numberpronumbere seems to have been received or taken into possession on that date. a pronumbere with four anna stamps affixed was later produced in the companyrt by the respondent on july 171952 during the companyrse of his state- ment under s. 342 criminal procedure companye but it was number mentioned to the magistrate p. w. 13 by the respondent. the charge against the respondent was that he had obtained from the companyplainant rs. 800 as gratification other than legal remuneration as a motive for the reward for showing favour to him in the exercise of official functions and had thereby companymitteed an offence punishable under s. 161 of the indian penal companye read with a. 4 of the prevention of company- ruption act act ii of 47 . the explanation of the respondent was that be men tioned to the companyplainant about his money difficulties when accidentally he met him on the road towards the end of august or beginning of september 1951. the companyplainant offered to lend him rs 1000/-. at that time he was number aware that the companyplainant had an assessment pending before him. it was the companyplainant who told him on numberember 15 when he met him again that the anumberymous letter was the work of his enemies and promised to advance the loan as previously promised and he also suggested that the respond- ent should execute a pronumbere for rs. 1000 which would be attested by venkatesa ayyar to which he the respondent was agreeable. the companyplainant paid rs. 800 on the morning of numberember 17 and promised to pay rs. 200 in the evening. the respondent had the pronumbere ready and offered to hand it over in the morning but the companyplainant said he would take it when he left the house . the learned special judge accepted the story of the prosecu- tion and after a careful analysis of the evidence found the respondent guilty of the offence charged and sentenced him to -six months simple imprisonment. on appeal being taken to the high companyrt the learned single judge reversed the judgment and acquitted the respondent. it will be companyvenient to give here the main findings of the learned judge in his own words it is true that at the time when the money was accepted by the accused the proceedings in relation to assessment of income tax on p. w. 8 were pending before the accused. naturally therefore if in such circumstances the accused should receive money from an assessee the suspicion is readily aroused that the money must have been paid only as an illegal gratification. on going through the judgment of the learned trial judge i formed the impression that he was totally influenced by such suspicion. the result is that if the version of p. w. 8 and thatof the accused are balanced the probability seems totilt the scale in favour of the accuseds version. in any case the evidence is number enumbergh to show that the explana- tion offered by the accused cannumber reasonably be true and so the benefit of doubt must go to him. but this was number a case of ordinary lendee but an income-tax officer whose favour was needed by the lender. evidence shows that in numberember 1951 the accused was in need of a sum of rs. 1000 and for that purpose has asked p.w. 8 for a loan. in my view the evidence does number necessarily make out a case that the accused must have accepted the money only as a bribe. i do number therefore feel certain that the taking of a loan with an obligation to repay it with interest would fall within the meaning of the term i gratification. the extent of the power of the supreme companyrt to interfere with a judgment of acquittal was raised before us by the respondents companynsel and it was companytended that the jurisdic- tion exercised by this companyrt under art. 136 was the same as that exercised by the judicial companymittee of the privy companyn- cil and reliance was placed on a minumberity judgment by venka- tarama aiyar j. in aher raja khima v. the state of saurash- tra 1 where the learned judge after discussing the various privy companyncil judgments and quoting a passage from the judgment of this companyrt in pritam singh v. the state 2 observed the preceding article referred to in the opening passage is clearly article 134. article 134 1 companyfers a right of appeal to this companyrt in certain cases in terms unqualified on questions both of fact and law and if the scope of an appeal under article 136 is to be extended likewise to questions of fact then article 134 1 would become super- fluous. it is obvious that the intention of the companystitu- tion in providing for an appeal on facts under article 134 1 a and b was to exclude it under article 136 and it strongly supports the companyclusion reached in pritam singh the state 3 that like the privy companyncil this companyrt would number function as a further companyrt of appeal on facts in crimi- nal cases. i 19552 s.c.r. 1285 1301. 2 1950 s.c.r. 453 458 the state of madhya pradesh v. ramakrishna ganpatrao limsey 1 was also referred to by companynsel for the respondent and it was companytended that the supreme companyrt should number interfere with the order of the high companyrt merely on the ground that it took a different view of the facts. that was an appeal which had been brought on a certificate by the high companyrt and number by special leave of this companyrt. that judgment was considered by a companystitution bench in state of madras v. gurviah naidu company limited 2 and s. r. das acting c.j. delivering the judgment of the companyrt pointed out that that was a decision of a bench of three judges and number of a constitution bench and the observation that there was no provision companyresponding to s. 417 of the criminal procedure code only emphasised that this companyrt should number in appeal by special leave interfere with the order of acquittal passed by the high companyrt merely for companyrecting errors of fact or of law. gurviah naidus case 2 was an appeal against a judgment of acquittal and this companyrt reversed the judgment saying- in our view the high companyrt erred in holding that the prosecution had failed to establish their case and in ac- quitting the accused. this case negatives the companytention that under art. 136 interference by this companyrt with findings of high companyrts in judgments of acquittal is number intended. even in state of madhya pradesh v. ramakrishna ganpatrao 1 mahajan j. was of the opinion that the supreme companyrt can interfere where the high companyrt acts perversely or otherwise improperly or has been deceived by fraud. in pritam singh v. the state 3 fazl ali j. after a careful examination of art. 136 along with the preceding articles stated the scope of the appeal under art. 136 to be- generally speaking this companyrt will number grant special leave unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and that the case in question a.i.r. 1954 s.c. 20. a.i.r. 1956 s.c. 158 161. 3 1950 s.c.r. 453. 458. presents features of sufficient gravity to warrant a review of the decision appealed against. even the privy companyncil in laying down the permissible limits for review in criminal matters included things so irregu- lar or so outrageous as to shock the very basis of justice . see mohinder singh v. the king 1 . an instance of this principle is the decision of the privy council in stephen seneviratne v. the king 2 which will be discussed later in this judgment and which has been approved of by this companyrt. interpreting the following words of s. 205 of the government of india act 1935 any judgment decree or final order of a companyrt and it shall be the duty of every high companyrt in british india to companysider in every case lord thankerton in king emperor v. sibnath bannerji 3 said -- the purpose of the provision is to companyfer a right of appeal in every case that involves a substantial question of law as to the interpretation of the act or of any order in companyncil made thereunder. one of the questions for decision in that case was whether an appeal lay in cases of habeas companypus. lord thankerton there observed in the absence of an express exception of habeas companypus cases and having in view the terms and purpose of the section their lordships are unable to limit tile terms of the section by mere companystruction so as to exclude these cases from its operation. in art. 136 the use of the words supreme companyrt may in its discretion grant special leave to appeal from any judgment decree determination sentence or order in any cause or matter passed or made by any companyrt or tribunal in the terri- tory of india show that in criminal matters numberdistinction can be made as a matter of companystruction between a judgment of companyviction or acquittal. in bhagwan das v. the state of rajasthan 4 the following observation of the judicial committee of the privy companyncil in stephen seneviratne v. the king 2 at p. 299 1 i932 l.r. 59 i.a. 233 235. 3 1945 l.r. 72 a. 241 255. a.i.r. 1936 p.c. 289. 4 a.i.r. 1957 s.c. 589. there are here numbergrounds on the evidence taken as a whole upon which any tribunal companyld properly as a matter of legitimate inference arrive at a companyclusion that the appellant was guilty was quoted with approval and after an examination of all the facts and circumstances of the case the supreme companyrt re- versed the judgment of companyviction by the high companyrt under art. 136. the question for decision in the present case is whether it falls within the limits laid down in the above- mentioned cases. this companyrt will number readily interfere with the findings of fact given by the high companyrt but if the high court acts perversely or otherwise improperly interference will be called for. the findings of the high companyrt in the present case are to say the least halting and the approach to the whole ques- tion has been such that it falls within what mr. justice mahajan in state of madhya pradesh v. ramakrishna ganpatrao 1 described as acting perversely or otherwise improperly . although the learned high companyrt judge has in the begin- ning of the judgment mentioned the presumption which arises under s. 4 of the prevention of companyruption act ii of 1947 the following passage in the judgment in any case the evidence is number enumbergh to show that the explanation offered by the accused cannumber reasonably be true and so the benefit of doubt must go to him is indicative of a disregard of the presumption which the law requires to be raised under s. 4. the relevant words of this section are where in any trial of an offence punishable under s. 161 it is proved that an accused person has accepted any gratification other than legal remuneration from any personit shall be presumed unless thecontrary is proved that he accepted that gratifica- tion as a motive or reward such as is mentioned in the said section 161 therefore where it is proved that a gratification has been accepted then the presumption shall at once arise a.1.r. 1054 s.c. 20. under the section. it introduces an exception to the gener- al rule as to the burden of proof in criminal cases and shifts the onus on to the accused. it may here be mentioned that the legislature has chosen to use the words shall presume and number may presume the former a presumption of law and latter of fact. both these phrases have been de- fined in the indian evidence act numberdoubt for the purpose of that act but s. 4 of the prevention of companyruption act is in part materia with the evidence act because it deals with a branch of law of evidence e.g. presumptions and there- fore should have the same meaning. shall presume has been defined in the evidence act as follows whenever it is directed by this act that the companyrt shall presume a fact it shall regard such fact as proved unless and until it is disproved. it is a presumption of law and therefore it is obligatory on the companyrt to raise this presumption in every case brought under s. 4 of the prevention of companyruption act because unlike the case of presumptions of fact presumptions of law constitute a branch of jurisprudence. while giving the finding quoted above the learned judge seems to have disre- garded the special rule of burden of proof under s. 4 and therefore his approach in this case has been on erroneous lines. the judgment also shows that certain salient pieces of evidence were missed or were number properly appreciated. at the time when the penalty numberice was issued under s. 28 of the income-tax act the respondent was number the income-tax officer at companymbatore but by june 6 he had been posted at coimbatore and the numbere on the penalty file dated june 61951 put up proposal to i.a.c. for levy of standard penalty was made by him. although this proposal was made on june 6 1951 it is number clear as to what final orders were passed in these proceedings and when. at least there is numberhing to indicate that any intimation was given to the companyplainant in regard to this matter. the companyplainant has stated on oath as p.w. 8- i alone went to the accused on 28th september 1951. he then told me that the penalty paper was number disposed of and that the accounts for the current year had number also been gone through. on the day following this the respondent asked the companyplain- ant for illegal gratification of rs. 1000. companynsel for the respondent companytended that there was numberoccasion for the respondent to say anything about the penalty proceedings because as far as he was companycerned the recommendation had already been made by him but the real question is whether the companyplainant was told as to what had happened or had any knumberledge of this. he states that he had numbere and there is numberhing to indicate that he bad. the respondent has then stated that the companyplainant was knumbern to him since 1942 when he the respondent was the head clerk of the appellate assistant companymissioner of in- come-tax and that is the reason why towards the end of august or the beginning of september when be casually met the companyplain. ant on the road he told him that he was in financial difficulties and the companyplainant offered him a loan of rs. 1000 to be returned in easy instalments and that he did number knumber at that time that the companyplainant was an assessee before him. this statement of the respondent has -been accepted by the high companyrt without companysidering the following important facts. numberice was issued to the company- plainant and he filed his return on august 11 1951. the numberice must have been issued to the companyplainant under a. 22 2 of the income-tax act by the respondent himself as he was at that time the income-tax officer. so it is difficult to believe his statement about his number knumbering that the complainant was an assessee before him and it is improbable that the respondent would mention his financial troubles to a more or less casual acquaintance who has neither been shown to be a banker number a money lender number a wealthy person. the companyplainant has stated that he visited the respondent on 6th or 7th october 1951 when he asked him if he had brought the money. the companyplaint replied that he had numbermoney to spare as he had purchased a house and he also asked him if the respondent had finished the assessment. the latters reply was that he would look into the matter and also told him that the companyplainant might pay half the amount of the illegal gratification before the deepavali time this statement the respondent has denied but the statement of the companyplainant as to his having no money as he had purchased a house has number been seriously challenged in cross-examination. the companyplainant had been asked to produce the accounts and be did produce them on september 27. the numberes made by the respondent in p-7 and p-7 a show that the accounts of the complainant were number being accepted in regard to companymbatore hotel. the portion of the order was - all the defects that are usual in hotel accounts exist here. in regard to bhavanisagar hotel the numbere stated -- purchases are number fully supported and sales are reckoned from till takings. on october 1 1951 the assesses had filed his written statement and also some other documents. numberhing more seems to have been done till numberember 7 when the relevant part of the numbere on the file is i have been keeping this in order to companypare the results with other nearby hotels. as to why numberenquiries companyld be made in the whole of this period is number clear from the assessment record and it ends support to the prosecution case that the respondent was making approaches to the companyplainant to get money from him. the respondent during the pendency of assessment proceedings of the companyplainant allowed the companyplainant to visit him at his house and even paid visit to his cafe. even according to the findings of the high companyrt the companyplainant was needing the favours of the respondent who on his own showing was himself in dire need of a thousand rupees as he had succeeded in companylecting only a thousand rupees by numberember2 and needed twice that amount for his sons premi- um or security as he chooses to call it. numberimportance was attached to this aspect of the case by the learned judge of the high companyrt. in our opinion the learned trial judge companyrectly appreciated this part of the prosecution case and his judgment is number as tile high companyrt has said coloured by nere suspicion. on numberember 6 1951 circle inspector munisami companytacted the complainant and arrangement was made for rs. 1000 to be paid by the companyplainant to the respondent and the money was actually taken by the companyplainant and offered to the re- spondent on numberember 8 which the respondent did number accept as he had received an anumberymous letter ex. p-18 which was dated numberember 6 1951 in which the respondent had been warned that malayalam people were attempting to ruin him. in spite of this warning the respondent companytinued to have truck with the companyplainant and actually accepted rs. 800 from him. it is true that when soon after the money was paid and the inspector p. w. 12 and the magistrate p.w. 13 arrived at the house of the respondent and asked him about this money he stated that he had taken it as a loan but in the companytext it assumes a different companyplexion. the state- ment of the magistrate p.w. 13 was- while the mahazar. was being prepared the accused volun- teered and told me that he had received the 800 rupees as a loan from p.w. 8-the companyplainant. this witness had also stated that when he went into the verandah of the house he asked the respondent whether he had received an illegal gratification from the companyplainant and also asked him to produce the money. the accused did number say anything but got up from the chair and tried to go inside the house which he was prevented from doing by the inspector p. w. 12. the witness added the accused was seen trembling and meddling with something under the towel. i asked the accused to remove the towel. the accused removed the towel. i saw some bulging at his waist in the dhoti be was wearing. i asked him again to produce the currency numberes. he produced them from the folds of the dhoti be was wearing. when producing the currency numberes the accused did number say anything. numberreal cross-examination was directed against these por- tions of the statement of the magistrate p.w. 13 number has the high companyrt companyrectly appreciated them or given them due weight. the respondent produced before the special first class magistrate on july 11 1952 an unsigned promote for rs. 1000 executed by him in favour of the companyplainant. that promote was number found in the house when the search was made by the deputy superintendent of police on numberember 19 1951 and it is number explained why the promote should have been made for rs. 1000 when actually the amount paid was only rs. 800 and why the respondent offered to give this promote to the companyplainant without receiving full companysidera- tion. these salient features of the case do number seem to have been properly appreciated or given due weight to by the high court and in our opinion the learned judges approach to the question whether the sum of rs. 800 was an illegal gratifi- cation or a loan is such that the judgment falls within the words of mahajan j. in ramakrishnas case 1 i.e. that the high companyrt has acted perversely or otherwise improperly. the evidence and the circumstances lead to the companyclusion that the transaction was number one of loan but illegal grati- fication.

test

1957_22.txt

civil appellate jurisdiction civil appeal number 120/62. appeal by special leave from the judgment and decree dated april 23 1959 of the former bombay high companyrt in second appeal number 1359 of 1955. s. k. sastri and m. s. narasimhan for the appellants. c. mathur j. b. dadachanji and ravinder narain for the respondent. february 14 1964. the judgment of the companyrt was delivered by subba rao j.-this appeal by special leave raises the question of the applicability of the bombay tenancy and agricultural lands act 1948 bom. act number 67 of 1948 hereinafter called the 1948 act to the tenancy of the land in dispute. the appellants are the legal representatives of one prabhubhai ratanji. the suit property is agricultural land situate within two miles of the limits of the surat municipal borough. it was part of the erstwhile sachin state. on may 7 1946 nagindas atmaram khatri the respondent herein who was the owner of the said land gave a lease of the same in favour of the said prabhubhai ratanji for a period of six years. on july 28 1948 sachin state became part of the stateof bombay. from that date the bombay tenancy act 1939hereinafter called the 1939 act was made applicable to the said area. on april 23. 1951 nagindas atmaram khatri the landlord gave a numberice to the defendant terminating the lease from march 31. 1952. after giving the said numberice he filed reg. suit number 403 of 1952 in the companyrt of the subordinate judge surat for eviction of the lessee parbhubhai ratanji. the suit was contested on various grounds the main companytention being that under the provisions of the 1939 act the defendant had acquired tenancy rights therein. as the defendant died on september 30 1955 his legal representatives were brought on record in his place. the learned civil judge inter alia held that the 1939 act was repealed by the 1948 act and that the latter act did number apply to the suit land as it was within two miles of the limits of the surat borough municipality. on that finding he gave a decree for possession arrears of rent and mesne profits. against the said decree the defendant preferred an appeal to the district judge. the learned district judge held that the landlord failed to prove that the suit property was within a distance of two miles of the limits of the surat borough municipality and on that finding he came to the companyclusion that the 1948 act applied to the suit land and set aside the decree of the trial companyrt awarding possession to the plaintiff but maintained the decree for arrears of rent. thereupon the plaintiff preferred a second appeal to the high companyrt insofar as the decree of the district companyrt went against him. the said appeal came up before a division bench of that high companyrt. the high companyrt held that the suit land was within two miles of the limits of the surat borough municipality and that therefore the 1948 act did number apply to the suit land. on that finding it set aside the decree passed by the learned district judge and restored that passed by the learned civil judge. the legal representatives of the defendant have preferred the present appeal. learned companynsel for the appellants companytended that the high court should have held that the rights of the appellants under the 1939 act were saved by the 1948 act. he companytended broadly that the right of the appellants under the 1939 act were preserved under s. 89 2 of the 1948 act with the result that the lease extended to 10 years under the 1939 act was saved thereunder and that by reason of the bombay tenancy and agricultural lands amendment act 1952 bom. act 33 of 1952 hereinafter called the 1952 act which brought the suit land within the scope of the 1948 act their rights so preserved came to be governed by the provisions of the 1948 act and therefore the respondent could number evict them except in the manner prescribed by the provisions of that act. to appreciate the companytentions of the parties it is neces sary to trace briefly the history of the relevant provisions. section 23 1 of the 1939 act as amended by the 1946 act read numberlease of any land situated in any area in which this section companyes into force made after the date of the companying into force of this section in such area shall be for a period of less than 10 years and b every lease subsisting on the said date or made after the said date in respect of any land in such area shall be deemed to be for a period of number less than 10 years. the 1939 act was repealed by the 1948 act. section 88 1 of the 1948 act as it stood before the amendment by the 1952 act read numberhing in the foregoing provisions of this act shall apply- a b c to any area within the limits of greater bombay or within the limits of the municipal borough of surat and within a distance of 2 miles of the limits such boroughs. section 89 thereof read the enactment specified in the schedule is hereby repealed to the extent mentioned in the fourth companyumn thereof. but numberhing in this act or any repeal effected thereby- a b shall save as expressly provided in this act affect or deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the companymencement of this act schedule i -------------------------------------------------------- year number short title extent of repeal ---------------------------------------------------------- 1 2 3 4 ---------------------------------------------------------- 1939 xxix the bombay ten- the whole except sections ancy act1939. 3 3-a and 4 as modified in the following manner ------------------------------------------------------------------ -- section 88 of the 1948 act was amended by the 1952 act. the relevant part of the amended section reads numberhing in the foregoing provisions of this act shall apply- a b c to any area within the limits of greater bombay within the limits of the municipal corporations companystituted under the bombay provincial municipal companyporation act 1949 within the limits of the municipal boroughs constituted under the bombay municipal boroughs act 1925 and within the limits of any cantonment the gist of the provisions in their application to a lease of agricultural land situated within two miles of the limits of the surat borough municipality may be stated thus such a lease subsisting on the date of the amending act of 1946 which came into force on april 11 1946 shall be deemed to be for a period of number less than 10 years. the 1939 act was repealed by the 1948 act. under s. 88 1 c or the 1948 act the provisions of that act were number applicable to any area within the municipal limits of the said borough of surat and within a distance of two miles of the limits of the said borough but the right title and interest of a lessee in such area was preserved under s. 8 9 2 b i of the said act. section 88 1 of the 1948 act among other things was amended by the 1952 act which came into force on january 12 1953. by the said amendment the 1948 act was extended to any area within a distance of two miles of the limits of the surat borough municipality. with the result all the provisions of the 1948 act would be applicable to a lease of agricultural land subsisting in such an area after the amendment came into force. if so such a lease can be terminated only in the manner prescribed by s. 14 thereof. what is the effect of this legal position on the facts of the present case? the relevant facts on which there is really numberdispute may number be stated. the lease deed between the appellants predecessor and the respondent was executed on may 7 1946 for a period of six years companymencing from may 3 1946 that is to say it would expire in the ordinary companyrse on may 2 1952. sachin state became part of the bombay state from july 28. 1948. after it became part of the bombay state the 1939 act as amended by the 1946 act was extended to that state with the result the lease which would have expired in may 1952 was statutorily extended by anumberher 4 years. that is till may 1956. on december 28 1948 the 1948 act came into force. that act repealed the 1939 act. it also exempted the lands within the limits of the surat borough municipality and also lands within two miles of the limits of the said municipality from the operation of the provisions of the said act. but it saved the right or interest of the lessee which he had acquired under the 1939 act. when the 1952 act came into force on january 12 1953 the said lease protected under the saving clause was subsisting. by the said amendment the 1948 act was made applicable to the land in question which is within two miles of the limits of the surat borough municipality. with the result the interest of the appellants companyld be terminated only under s. 14 of the 1948 act. on april 23 1951 the respondent gave a numberice to the appellants terminating the lease from march 31 1952 and filed the suit for eviction on april 21 1952. but before the suit was disposed of the 1952 act came into force and by reason of the extension of the 1948 act to the said land the respondent companyld number evict the appellants except in the manner prescribed by the 1948 act. the high companyrt therefore was wrong in holding that the appellants companyld number claim the benefit of the provisions of the 1948 act at this stage anumberher argument advanced by learned companynsel for the respondent may also be numbericed. the argument is that the saving provision in s. 89 2 operates only if there is numberexpress provision to the companytrary but such an express provision is found in s. 88 1 inasmuch as it says that the provisions of ss. 1 to 87 will number apply to the area in question. it is further companytended that the saving of the appellants right would be otiose as he companyld number enforce his right under the act. a similar argument was advanced but was repelled by this companyrt in sakharam alias bapusaheb narayan sanas v. manikchand motichand shah 1 . there the lands in dispute were situate within two miles of the limits of the poona municipal borough. the question was whether the rights of the appellants as protected tenants were affected by the repeal. this companyrt held that the provisions of s. 88 1 were entirely prospective and that they applied to lands of the description companytained in the said section from the date on which the act came into force and that they were number intended in any sense to be of companyfiscatory character. when it was further companytended that the right would be illusory as it companyld number be enforced under the act this companyrt pointed out that as there was a right recognized by law there was a remedy and therefore in the absence of any special provisions indicating a particular forum for enforcing a particular right the general law of the land would naturally take its companyrse. this decision is binding on us. we therefore reject this companytention. 1 1962 2 s.c.r. 59. even so learned companynsel for the respondent companytended that in the view taken by the high companyrt it had become unnecessary for it to give its findings on two of the important issues that arose in the case namely issues 3 and 4 which are as follows issue 3. whether the plaintiff proves that he wants possession for bona fide personal cultivation. issue 4. whether the defendant proves that he had number damaged the suit property in view of the decision in reg. c. suit number 619 of 1950 by the joint civil judge j.d. surat. he therefore pointed out that the matter would have to be remanded to the high companyrt for its decision on the said two points. in view of the supervening circumstances it is number possible to accede to this argument.

test

1964_342.txt

civil appellate jurisdiction civil appeal number 1438 of.1967. appeal by special leave from the judgment and decree dated september 27 1962 of the madhya pradesh high companyrt gwalior bench in civil appeal number 310 of 1960. t. desai and p. c. bhartari for the appellants. c. misra bhajan ramrakhyani and urmila kapoorfor respondents number. 1 to 4 8 and 10 to 12. the judgment of the companyrt was delivered by dua j. this is the plaintiffs appeal by special leave from a companymon judgment and decree of a learned single judge of the madhya pradesh high companyrt at gwalior dated september 27 1962 partially allowing the defendants second appeal and dismissing that of the plaintiffs. it is number necessary to state the detailed facts of the case. facts necessary for the purpose of this appeal alone may briefly be stated. in may 1939 ramle singh and jomdar singh created a mortgage of the suit land in favour of munshi singh for a sum of rs. 2242/14/-. it is said that in may 1943 numberice given by the mortgagors for redemption of the mortgage was refused by the mortgagee. in june 1943 the suit giving rise to the present appeal was instituted for redemption of the mortgage. some other persons who were found to be in possession of the land claiming to be tenants were also impleaded as defendants. on may 25 1951 madhya bharat zamindari abolition act xiii of 1951 was enforced. it appears that an application to amend the plaint as a result of the new enactment was disallowed by the trial companyrt but on revision the madhya pradesh high court by its order dated october 10 1955 reversed the order of the trial companyrt and permitted the plaintiffs to amend the plaint. the pleadings after the amendment gave rise to nearly 17 issues on the merits. on october 10 1958 the suit was decreed in respect of the relief for redemption but claim in regard to mesne profits was disallowed. preliminary decree for redemption was accordingly granted. in the companyrse of its judgment the trial companyrt observed under issue number 10 as follows i have in preceding paras shown that as per allegations in the written statements and the patwari papers it appears that the suit lands have been in possession of hanumantsingh shambhoosingh khemsingh mansingh and namdassingh. it will be discussed later whether they and descendants of munshisingh are joint owners or number. before abolition of zamindari the records show half of the suit lands as the khundkasht of the above defendants and half as the tenancy holding of namdas kastkari . these entries however do number companyfer any title on the parties. their right to remain in possession is limited i.e. till such time as the property is redeemed by the mortgagers i.e. the plaintiffs. these entries or the rights shown therein cannumber prejudice the right of the plaintiffs. the companyrt while deciding issues number. 16 and 17 observed thus a i have discussed these issues earlier in a different companytext. i may briefly add that abolition of zamindari act does number affect the right of the plaintiffs to recover possession of lands which were placed in possession of the mortgagees 1956 m.b.l.j. rameshwar vs bhogiram . defendants hanumantsingh and others did number acquire possession of the suit lands by virtue of the sale in favour of their father daulat singh because they had purchased only an equity of redemption as will appear from the judgment in civil suit number 21/2001 filed on record. entries as pacca krishak cannumber affect the rights under the mortgage bond. i find accordingly. three appeals were presented in the district companyrt against the. decree founded on this judgment one of them being by the plaintiffs challenging refusal by the trial companyrt to grant mesne profits. -in- october 1960 the plaintiffs appeal was partly allowed and mesne profits decreed from the date of deposit of the mortgage amount in companyrt. the other two appeals were dismissed. that companyrt disposed of all appeals by a companymon judgment and came to the companyclusion that the lands had been mortgaged with possession by samle singh and jomdar singh with munshi singh and that they were under self-cultivation of the plaintiffs before the mortgage the mortgagees having companye into possession by reason of the mortgage. the matter was taken by the defendants to the high companyrt on second appeal the plaintiffs having also preferred an appeal in that. companyrt against the decree of the first appellate companyrt declining to give full relief claimed in regard to mesne profits. in the high companyrt also three appeals were presented. the high companyrt partially allowed the defendants appeal in view of the provisions of the madhya bharat zamindari abolition act xiii of 1951. the plaintiffs were held entitled to redeem the mortgage by paying the mortgage money but disentitled to get possession of the mortgaged land. the proprietary rights including the right to get possession having vested in the state under the aforesaid act the plaintiffs according to the high companyrt could only claim companypensation from the government on the basis of their proprietary rights after redeeming the mortgage by making payment of the mortgage money. in support of this view the high companyrt relied on this companyrts decision in haji sk. subhan v. madho rag 1 companysidering that decision to be decisive of the point in issue. that decision however appears to us to be directly companycerned with the madhya pradesh abolition of proprietary rights estates muhals alienated land act 1950 madhya pradesh act 1 of 1951 . before us the short question raised on behalf of the appellants is that reliance on the madhya bharat zamindari abolition act xiii of 1 1962 supp. 1 s.c.r. 123. 2 1 1951 for the first time in the high companyrt was improper and that in any event without affording an opportunity to the appellants to show that the said act did number apply to the case in hand their suit companyld number have been dismissed. the submission is number wholly companyrect. there was in fact an amendment of the plaint pursuant to the enactment of the madhya bharat abolition of zamindari act and additional issues were framed on the amended pleadings. the parties and the companyrts were thus number ignumberant of the existence of the said act on the statute book. turning to the act in question it was brought on the statute book in 1951 as the preamble shows in order to provide for the public purposes of the improvement of agriculture and financial companydition of agriculturists by abolition and acquisition of the rights of proprietors in villages muhala chaks or blocks settled on zamindari system which is only a. system of keeping an intermediary between the state and the tenants injurious to the betterment of agriculture as well as the agriculturists in madhya bharat and for other matters companynected therewith proprietor as defined in s. 2 a means as respects a village muhal or land settled on zamindari system a person owning whether in trust or for his own benefit such village muhal or land and includes 1 a malguzar as defined in sub-clause 12 of section 2 of qanumbern mal gwalior state samvat 1983 and 2 as respects a chak or block a chakdar or blockdar whose lease granted to him by the government under any act rule or circular relating to chaks and blocks includes also amongst its other companyditions a companydition that he shall acquire the proprietary rights in respect of that chak or block when the companyditions of the lease are fulfilled 3 the heir and successors in interest of a proprietor section 2 c defines khud-kasht to mean land cultivated by the zamindar himself or through employees or hired laborers and includes sir land. sections 3 and 4 which occur in chapter ii dealing vesting of proprietary rights in the state provides as under vesting of proprietary rights in the state. save as otherwise provided in this act and subject to the provisions of section 8 on and from a date to be specified by a numberification by the government in this behalf hereinafter referred to as the date of vesting all proprietary rights in a village muhal land chak or block in madhya bharat vesting in a proprietor of such village muhal land chak or block as the case may be or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the state free of all encumbrances. after issue of a numberification under sub- section 1 numberright shall be acquired in or over the land to which the said numberification relates except by succession or under a decree or order of a companyrt or under a grant or contract in writing made or entered into by or on behalf of the government and numberfresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the government in this behalf. the government may by numberification published in the gazette vary the date specified under sub-section 1 at any time before such date. companysequences of the vesting of an estate in the state. save as otherwise provided in this act when the numberification under section 3 in respect of any area has been published in the gazette then numberwithstanding anything contained in any companytract grant or document or in any other law for the time being in force the companysequences as hereinafter set forth shall from the beginning of the date specified in such numberification hereinafter referred to as the date of vesting ensue namely - a all rights title and interest of the proprietor in such area including land cultivable barren or bir forest trees fisheries wells other than private wells tanks ponds water channels ferries path ways village-sites hats and bazars and mela- grounds and in all sub-soil including rights if any in mines and minerals whether being worked or number shall cease and be vested in the state free from all encumbrances b all grants and companyfirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall whether liable to resumption or number determine c all rents and cesses in respect of any holding in the property so vesting for any period after the date of vesting which but for such vesting would have been payable to the proprietor shall vest in the state and be payable to the government and any payment made in companytravention of this clause shall number be a valid discharge of the person liable to pay the same explanation-the word holding shall for the purpose of this clause be deemed to include also land given on behalf of the proprietor to any person on rent for any purpose other than cultivation- d all arrears of revenue cesses or other dues in respect of any property so vesting and due by the proprietor for any period prior to the date of vesting shall companytinue to be recoverable from such proprietor and may without prejudice to any other mode of recovery be realised by deducting the amount from the companypensation money payable to such proprietor under chapter v the interest of the proprietor so acquired shall number be liable to attachment or sale in execution of any decree or other process of any companyrt civil or revenue and any attachment existing at the date of vesting or any order for attachment passed before such date shall subject to the provisions of section 73 of the transfer- of property act 1882 cease to be in force. f every mortgage with possession existing on the property so vestingor part thereof on the date immediately preceding the date of vesting shall to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the state under section 3 to have been substituted by a simple mortgage. numberwithstanding anything companytained in subsection 1 the proprietor shall companytinue to. remain. in possession of his khud-kasht land so recorded in the annual village papers before the date of vesting. numberhing companytained in sub-section 1 shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights. a plain reading of these sections would show that all rights title and interests of the proprietors in the area numberified were to cease and were instead to vest in the state free from all encumbrances with effect from the date of numberification and after such vesting in the state every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting to the extent of the amount secured on such property or part thereof is to be deemed without prejudice to the right of the state under section 3 to have been substituted by a simple mortgage. the proprietor however numberwithstanding other companysequences of the vesting in a state is entitled to companytinue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. number it was clearly open to the plaintiffs to show that the land in question was khud-kasht and therefore in accordance with s. 4 they were entitled to remain in possession thereof. on behalf of the appellants also our attention was invited to the decision of this companyrt in the case of haji sk. subhan 1 and specific reliance was placed on observations at page 139 of the report which suggests that a person continuing in possession on the basis of entries in the village papers which had to be presumed to be companyrect was number affected by the act. reference was also made to the observation at page 142 of the report where right to possess was upheld in favour of the party who had obtained a declaration of being an owner in possession. on behalf of the respondents reliance was placed on rana sheo ambar singh v. allahabad bank limited allahabad 2 but that decision does number deal with the madhya bharat act which concerns. that is with the u.p. zamin-dari abolition and land reforms act 1 of 1951 the scheme of which is number shown to be similar to that of the madhya bharat act so far as it companycerns us in the present case. that decision is therefore of little assistance in construing the madhya bharat act. anumberher decision on which the respondents learned advocate has placed reliance is raja sailendra narayan bhaj deo v. kumar jagat kishore prasad narayan singh s which again 1 1962 supp. i s.c.r. 123. 2 1962 2 s.c.r. 441. 3 1962 supp. 2 s.c.r. 119. deals with the bihar lands reforms act and number with the madhya bharat act. the scheme of the bihar act being also dissimilar from that of the madhya bharat act this decision too cannumber be of much help. the last decision relied on by shri mishra is suraj ahir v. prithinath singh and others 1 which is companycerned with the bihar lands reforms act xxx of 1950 as amended by act xvi of 1959. this decision is equally unhelpful. in our opinion the high companyrt was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this companyrts decision in the case of haji sk. subhan 2 . in the reported case the word document as occurring in s. 4 1 of the m.p. abolition of proprietary rights m.p. act 1 of 1951 was companystrued to include a decree of the companyrt and it was held that the principle that the executing companyrt cannumber question the decree and has to execute it had numberoperation on the facts of that case because the objection was number based on the invalidity of the decree but on the effect of the aforesaid act on the rights of the decree holder proprietor to retain possession. the facts of that case were therefore different and so was the problem requiring solution. the precise question requiring decision by the court in the present case was lost sight of and number properly adverted to. we are required in the present case to consider the effect of s. 4 1 f of the m.p. act xill of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land. it may be pointed out that both the companytesting parties-the appellants and the respondents-before us claim for themselves actual possession of the land in dispute as khud- kashi and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such possession. on this basis they both claim right to retain possession even against the state. these rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the companyrt had to consider the applicability of the relevant provisions of the p. act xiii of 1951 to the facts found. as the question of vesting of title in the state was also of vital importance it was in our opinion fit and proper for the courts below to have issued numberice to the state as well thereby enabling it to be impleaded as a party if it so desired. the approach of the high companyrt is erroneous and its decision highly unsatisfactory. the companytrolling questionseems to have been missed. we therefore allow the appeal and remit the case back to the high companyrt for a fresh decision of the- a.i.r. 1963 s. c. 454. sup.cl.170-3 2 1962 supp. 1 s.c.p. 12?.

test

1969_253.txt

shah j. these appeals have been filed with certificates granted by the high companyrt of assam under art. 132 of the companystitution against orders passed in certain petitions filed by the appellants praying for writs of certiorari or other appropriate writs quashing orders relating to assessment of sales-tax and prohibiting the superintendent of taxes dhubri and other officers from taking action in enforcement of the said orders. the appeals raise companymon questions and may be disposed of by a companymon judgment. the appellants are merchants carrying on business as dealers in jute and have their principal place of business at calcutta. the appellants have a branch office at dhubri in the state of assam and the registered dealers under the assam sales tax act 1947 17 of 1947 . the appellants purchased jute at dhubri and other places in the state of assam and despatched bales of jute to diverse factories outside the province of assam. the appellants submitted returns of turnumbert for purposes of sales-tax before the superintendent of taxes dhubri under the assam sales tax act in respect of transactions of sale during the period between march 1948 to march 1950. the superintendent of taxes called upon the appellants under s. 17 2 of the act to produce their books of account and other evidence in support of their returns and granted them time to enable them to companyply with the requisition but the appellants failed to do so. the superintendent of taxes then made best judgment assessments exercising his powers under s. 17 4 of the act and issued demand numberices for the tax determined. against the orders passed by the superintendent of taxes appeals were preferred to the assistant companymissioner of taxes. before the appellate authority the appellants produced some but number all their books of account and documents in support of their returns. before the appellant authority it was companytended inter alia that the definition of sale in s. 2 12 of the act was beyond the legislative companypetence of the provincial legislature that tax was sough to be levied on sales effected outside the state and that imposition of sales tax on the transactions of the appellant amounted to levying an export tax which was number open to the provincial legislature. it was however number companytended before the assistant commissioner of taxes that the jute bales sale price of which was included in the turnumberer were number at the time of the companytracts in the form of jute bales actually within the state of assam and therefore the explanation to s. 2 12 did number make that sale price liable to be included in the turnumberer of the appellants. the assistant companymissioner of taxes assam dismissed the appeals. in the revision applications preferred to the companymissioner of taxes assam against the order of the assistant companymissioner of taxes it was contended for the first time that the price of jute included in the turnumberer under the orders passed by the superintendent of taxes was number liable to be taxed because within the meaning of the explanation to s. 2 12 the goods were number at the time of the companytracts actually in the province of assam. the commissioner reject the companytention after examining what he called the time-table of cultivation. he observed that the usual time for marketing jute of the new crop was between july and june of the following year jute being planted in or about february and being ready for marketing some time about the month of june. the companymissioner further observed that the companytracts were made on diverse dates between march and september and deliveries under the contracts were made after the month of july when the new crop was brought into the market. the companytracts between the months of march and july were therefore in respect of the last years crop and the goods sold must actually have been in the province of assam at the date of the companytracts. the companymissioner made certain modifications in the assessment order but with those modifications we are number companycerned in these appeals. against the order passed by the companymissioner petitions under art. 226 of the companystitution were filed by the appellants for writs of certiorari and prohibition. amongst the grounds urged before the high companyrt were the following two grounds which alone survive for determination in these appeals 1 that the explanation to s. 2 12 of the act was ultra vires the assam legislature under the provisions of the government of india act 1935 and therefore tax companyld number be levied on sales irrespective of the place where the companytracts were made merely relying upon the circumstance that at the time of the companytracts of sale the goods contracted to be sold were actually in the province of assam and 2 that the finding recorded by the companymissioner that the goods were actually in the province of assam at the time when the companytracts were made was speculative. the high companyrt held that the explanation to s. 2 12 was in respect of the period prior to the companystitution number ultra vires the authority of the provincial legislature and that numberattempt was made to establish before the appellate authority that the books of account supported the companytention that the goods were number actually in existence in the state of assam at the time of the contracts of sale. holding that the reasons which the companymissioner had given in support of his finding were number altogether unjustified and that the taxing authorities being fully companyscious that one of the essential ingredients of tax liability was that the goods must be actually in existence in the state of assam at the time of the companytracts of sale the high companyrt declined to companysider whether the companyclusions of the taxing authorities on questions of fact were companyrect. but the high companyrt held that the plea about the vires of s. 2 12 and the explanation thereto raised a substantial question as to the interpretation of the companystitution and accordingly granted certificates of fitness under art. 132 of the companystitution. at the hearing of these appeals companynsel for the appellants sought leave to challenge the companyrectness of the decision that the goods were when the contracts were made actually within the province of assam. we have heard counsel for the appellants at great length upon this application for leave to appeal on grounds other than companystitutional on which the certificates were granted by the high companyrt. after carefully companysidering the arguments we are of the view that so case has been made out for acceding to that request. a person appealing to this companyrt under art. 132 of the companystitution may number challenge the companyrectness or propriety of the decision appealed against on grounds other than those on which the certificate is granted unless this companyrt grants him leave to raise other questions. such leave is generally granted where the trial before the high companyrt has resulted in grave miscarriage of justice or where the appeal raises such substantial questions that on an application made to this court under art. 136 of the companystitution leave would be granted to the applicant to appeal against the decision on those questions. the assam sales tax act 1947 was enacted in 1947. by s. 2 3 the expression dealer is defined as meaning any person who carries on the business of selling or supplying goods in the province and by the explanation the manager or agent of a dealer who resides outside the province and carries on the business of selling or supplying goods in the province is in respect of such business to be deemed a dealer for the purpose of the act. clause 12 of s. 2 defines sale. section 3 is the charging section and s. 4 prescribes the rates of tax. the sales-tax authority may if he is number satisfied that the return furnished by the dealer is companyrect and companyplete serve on the dealer a numberice required him either to attend in person and to produce or cause to be produced any evidence on which he may rely in support of his return sub-s. 2 of s. 17 and may make an assessment to the best of his judgment if the dealer fails to make a return or fails to companyply with the terms of the numberice issued under sub-s. 2 of s. 17. section 30 companyfers a right of appeal to an aggrieved dealer to the authority prescribed by the rules and by s. 31 revisional jurisdiction may be exercised by the companymissioner of sales tax against the order of the sales-tax authorities. by s. 32 within sixty days from the date of service of any order in appeal or revision the dealer may by application in writing require the board of revenue or the companymissioner as the case may be to refer to the high companyrt any question of law arising our of such order and if the board or the companymissioner decline to state the case the dealer may apply to the high companyrt calling upon the board or the companymissioner to state the case and the high companyrt may if it be number satisfied with the correctness of the decision of the companymissioner require the authority concerned to state the case and refer it and on receipt of any such requisition such authority shall state and refer the case. the high companyrt upon hearing any such case decides the question of law raised on the reference and delivers its judgment thereon companytaining the grounds on which such decision is founded sub-s. 8 . the act therefore provides a hierarchy of taxing tribunals companypetent to decide question as to the liability of the tax-payer under the assam sales tax act with a right to have questions of law arising out of the order decided by the high companyrt of the province. primarily it is the superintendent of taxes who assesses the liability to pay tax. an appeal against the order of the superintendent lies to the assistant companymissioner of taxes and against the order of the assistant companymissioner a revision application lies to the companymissioner. against the order of the companymissioner a reference may be demanded on questions of law to the high companyrt and if reference is refused the high companyrt may be moved to call for a reference. the scheme evolved by the legislature for determination of tax liability is that all questions of fact are to be decided by the taxing authorities and on question of law arising out of the decision of the axing authorities the opinion of high companyrt may be obtained. the high companyrt has however numberpower to decide questions of fact which are exclusively within the companypetence of the taxing authorities. the high companyrt is again number an appellate authority over the decision of the companymissioner it has merely to give its opinion on questions of law arising out of the order of the companymissioner. whether the decision of the commissioner is number supported by any evidence or is based upon a view of facts which companyld never be reasonably entertained is a question of law which arises out of the order. against the order of the companymissioner an order for reference companyld have been claimed if the appellants satisfied the companymissioner or the high companyrt that a question of law arose out of the order. but the procedure provided by the act to invoke the jurisdiction of the high companyrt was bypassed. the appellants moved the high companyrt challenging the companypetence of the provincial legislature to extend the companycept of sale and invoked the extraordinary jurisdiction of the high companyrt under art. 226 and sought to reopen the decision of the taxing authorities on questions of fact. the jurisdiction of the high court under art. 226 of the companystitution is companyched in wide terms and the exercise thereof is number subject to any restrictions except the territorial restrictions which are expressly provided in the article. but the exercise of the jurisdiction is discretionary it is number exercised merely because it is lawful to do so. the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. resort so that jurisdiction is number intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. ordinarily the companyrt will number entertain a petition for a writ under art. 226 where the petitioner has an alterative remedy which without being unduly onerous provides an equally efficacious remedy. again the high companyrt does number generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. the high companyrt does number therefore act as a companyrt of appeal against the decision of a companyrt or tribunal to companyrect errors of fact and does number by assuming jurisdiction under art. 226 trench upon an alternative remedy provided by statute for obtaining relief. where it is open to the aggrieved petitioner to move anumberher tribunal or even itself in anumberher jurisdiction for obtaining redress in the manner provided by a statute the high companyrt numbermally will number permit by entertaining a petition under art. 226 of the companystitution the machinery created under the stature to be by-passed and will leave the party applying to it to seek resort to the machinery so set up. in the present case the appellants had the right to move the companymissioner to refer a case to the high companyrt under s. 32 of the act and to move the high court if the companymissioner refused to refer the case. but they did number do so and moved the high companyrt in its jurisdiction under art. 226 of the companystitution and invited the high companyrt to re-open the decision of the taxing authorities on questions of fact which jurisdiction by the statute companystituting them is exclusively vested in the taxing authorities. this they did without even raising the questions before the superintendent of taxes and the assistant commissioner. the appellants who are dealers registered under the assam sales tax act submitted their returns to the superintendent of taxes but failed when called upon to produce their books of account and other evidence in support of their returns. even before the assistant companymissioner they produced some but number all their books of account and evidence demanded by the superintendent. by the explanation to s. 2 12 of the act the expression sale numberwithstanding anything companytained in the indian sale of goods act 1930 includes sale of any goods which are actually in the province at the time when the companytract of sale in respect thereof is made irrespective of the place where the said companytract is made and such sales are deemed for the purposes of the act to have taken place in the province. under the indian sale of goods act a sale takes place when property in the goods passes. but for the purposes of the assam sales tax act situation of the goods is seized by the legislature for the purpose of fictionally regarding the sale as having taken place within the province of assam if at the time of the companytract of sale the goods are within the province. liability to sales tax in respect of the goods where the transfer in the property of the goods has taken place outside the province of assam undoubtedly arose if companyditions prescribed by the explanation exist viz. the goods are actually in the province when the companytract of sale is made and number otherwise. but the question whether the goods at the date of the companytract of sale were actually in the province is a question of fact which had to be determined by the sales tax authorities. before the superintendent of taxes liability to pay tax was challenged but it does number appear to have been companytended that at the time of the companytract of sale the goods were number actually within the province and numbersuch companytention appears to have been even raised before the assistant commissioner of taxes. before the companymissioner in the revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnumberer were number within the province at the time of the companytract of sale and therefore the price of those goods companyld number be taken into account in companyputing the taxable turnumberer. the companymissioner held having regard to the time-table of cultivation of jute and the time when the jute is brought into the market for sale that the goods sold were within the province on the dates of the companytracts and therefore the price thereof was liable to be included in the taxable turnumberer. the high companyrt as we have already observed took the view that the finding of the companymissioner was number altogether unjustified number companyld it be said that the commissioner and the other taxing authorities were number quite companyscious of the requirements which attracted the application of the explanation to s. 2 12 and declined to enter upon a reappraisal of the evidence which in the view of the high companyrt the taxing authorities alone were companypetent to enter upon. in these appeals mr. setalvad on behalf of the appellants companytends that there is clear evidence on the record to show that even applying the test laid down by the companymissioner some of the companytracts of sale were made before the goods were marketable and therefore the view taken by the taxing authorities that the goods were at the date of the companytract in existence within the province of assam was without any foundation. companynsel also submitted that some of the companytracts related to jute grown in pakistan and with respect to those companytracts also the assumption made by the companymissioner that the goods were within the state of assam at the date of the companytract of sale could number be warranted. companynsel then said that the description of the goods in the companytracts of sale indicated that they related to bales whereas the companytracts for purchase by the appellants were in respect of loose jute and as the goods purchased were number identical or ascertainable with reference to the companytracts of sale made by the appellants liability to pay tax was number attracted under s. 2 12 of the act. we are unable to entertain these pleas because they were never raised before the superintendent of taxes and the assistant companymissioner and numberevidence was produced by the appellants to support those pleas. before the companymissioner it was broadly urged that the goods in respect of the contracts companyld number have been in existence within the province at the date of the respective companytracts of sale but that argument was for reasons already mentioned rejected by the companymissioner and the high companyrt declined to allow the question whether the findings of the companymissioner were speculative to be agitated. the appellants number seek to plead that the taxing authorities were in error in holding that the goods companyformed to the companyditions as to the situs of the goods at the dates of the companytracts of sale prescribed by s. 2 12 so as to make the price liable to be included in the taxable turnumberer. the legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable to the authorities appointed in that behalf with right of recourse to the high companyrt on questions of law arising out of the order of the companymissioner of taxes. it is therefore companytemplated by the legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are number taxable should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. if after a proper trial the claim is negatived because the facts on which it is founded are number proved the proceeding must end. if however the adjudication of the companymissioner is vitiated because there is numberevidence to support it or it is based on companyjectures suspicions or irrelevant materials or the proceedings of the taxing authorities are otherwise vitiated so that there has been numberfair trial the high companyrt may undoubtedly advise the commissioner on questions properly referred to it in the manner provided by the act. but the high companyrt cannumber be asked to assume the role of an appellate authority over the decision of the companymissioner on questions of fact or even of law. assuming that there is some substance in the companytention that the adjudication by the companymissioner proceeded on grounds which the appellants characterised as speculative it was open to them to resort to the machinery provided by the act and having failed to do so they companyld number ask the high companyrt to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the act. we accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the high companyrt because the questions sought to be raised are questions of fact which were number canvassed at the appropriate stage before the taxing authorities and the machinery provided under the act for determination of questions relating to liability to tax is attempted to be bypassed. the companystitutional question on which certificate was granted does number need companysideration in any detail. by the explanation to s. 2 12 of the act numberwithstanding anything to the companytrary companytained in the provisions of the indian sale of goods act 1930 a sale is deemed to be companyplete when the goods which are actually within the state of assam at the time when the companytract of sale is made irrespective of the place where the companytract is made. under the sale of goods act 1930 in the absence of a companytract to the companytrary a sale is complete when property in the goods passes but by the assam sales tax act the legislature has attempted to locate the situs of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the province at the date of the companytract for the purposes of levying tax on sales. the legislature has thereby number overstepped the limits of its authority the tata iron steel companypany limited v. the state of bihar 1958 s.c.r.

test

1964_213.txt

civil appellate jurisdiction civil appeal number 207 of 1984. from the judgment and order dated 12.3. 1982 of the madhya pradesh high companyrt in misc civil case number 539 of 1981. ranjit kumar and subhash sharma for the appellant. prithvi raj and s.k. agnihotri for the respondent. the judgment of the companyrt was delivered by ranganath misra j. this appeal is by special leave and is directed against the judgment of the high companyrt of madhya pradesh by which the high companyrt has in second appeal upheld the dismissal of the plaintiffs suit on the plea of limita- tion. the plaintiff a government servant of madhya pradesh was dismissed from service by the companylector on 13th of january 1966. he preferred an appeal to the divisional commissioner and that appeal was dismissed on 31.8.1966. the order of dismissal of the appeal was companymunicated to the plaintiff on 19.9.1960. the plaintiff gave numberice under s.80 of the companye of civil procedure on 17.6.1969 and filed his suit on 30th of september 1969 asking for a declaration that the order of dismissal was inumbererative and he companytinued to be in service. this suit has been dismissed in the companyrts below on acceptance of the defence plea that it had number been filed within three years from the date when the cause of action first arose as required under article 58 of the first schedule of the limitation act 1963. when this appeal came up for hearing before a division bench reliance was placed on the decision of this companyrt in sita ram goel v. the municipal board kanpur ors. 1959 scr 1148 in support of the companytention that the suit was barred by limitation. the division bench extracted a passage from goels judgment where it said the result is numberdoubt unfortunate for the appellant because the trial companyrt found in his favour in regard to his plea of wrongful dismissal. if he had only brought the suit within the period prescribed by section 326 of the act he might possibly have got some relief from the companyrt. he however chose to wait till the decision of the state govern- ment on his appeal and overstepped the limit of time to his own detriment. we are unable to come to any other companyclusion than the one reached above and the appeal must therefore stand dismissed but in the peculiar circum- stances of the case we make numberorder as to costs and observed such unfortunate results should be avoided if it is possible to do so. we are of the view that the decision in sita ram goels case which has been decided by a bench of five judges requires to be reconsidered see 1988 suppl. scc 522 that is how this appeal has companye before the seven judge bench. the plaintiffs suit was one to obtain a declaration that the order of dismissal was bad and he companytinued to be in service. to such a suit the companyrts below have rightly applied article 58 of the first schedule of the limitation act. that article runs thus to obtain any three when the right to other declaration. years sue first accrues. appellants companynsel placed before us the residuary article 113 and has referred to a few decisions of some high courts where in a situation as here reliance was placed on that article. it is unnecessary to refer to those decisions as on the authority of the judgment of this companyrt in the case of pierce leslie co. limited v. violet ouchterlony wapshare ors. vice versa 1969 3 scr 203 it must be held that article 113 of the act of 1963 companyresponding to article 120 of the old act is a general one and would apply to suits to which numberother article in the schedule applies. the fate of this appeal therefore rests upon the finding as to when the right to sue first accrued. all the three companyrts have accepted the position that on 1.3.1966 when the order of dismissal was made by the companylector the right to sue first accrued. admittedly the suit was number filed within a period of three years from that date. the appeal was dismissed on 31.8.1966. the sixty days time spent for companyplying with the requirement of numberice under s. 80 of the companye of civil procedure was available to the plaintiff in addition to the period of three years. if the date therefore companynts from the date of the appellate order the suit would be within time. in goels case the question of merger of the order of the lower authority in the order of the higher authority was considered. adverting to this aspect bhagwati j. who spoke for the companyrt said the initial difficulty in the way of the appellant however is that departmen- tal enquiries even though they culminate in decisions on appeals or revision cannumber be equated with proceedings before the regular courts of law. reliance was placed on the observations of this companyrt in state uttar pradesh v. mohammad numberh 1958 scr 595 where it has been said an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by anumberher officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the companye of civil procedure by the companyrt of first instance and the decree dismissing the appeal therefrom by an appeal companyrt and the order dismissing the revision petition by a yet higher companyrt because the de- partmental tribunals of the first instance or on appeal or revision are number regular companyrts manned by persons trained in law although they may have the trapping of the companyrts of law and the companyrt proceeded to say the analogy of the decisions of the companyrts of law would therefore be hardly available to the appellant. alternately the companyrt also examined the question as to whether when the appeal of the appellate companyrt affirming the decree of the trial companyrt was made the original decree had ceased to be operative. bhagwati j. quoted with approval anumberher part of the judgment in moharnmad numberhs case where it was said in the next place while it is true that a decree of a companyrt of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision it does so only for certain pur- poses namely for the purposes of companyputing the period of limitation for execution of the decree as in batuk nath v. munni dei 41 indian appeals 104 or for companyputing the period of limitation for an application for final decree in a mortgage suit as in jowad hussain v. gendan singh 53 indian appeals but as pointed out by sir lawrence jen- kins in delivering the judgment of the privy council in juscurn soid v. pirthichand lal 40 indian appeals 52 whatever be the theory under other systems of law under the indian law and procedure an original decree is number suspended by the presentation of an appeal number is its operation interrupted where the decree on appeal is merely one of dismissal. there is numberhing in the indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance be- comes final only on the termination of all .proceedings by way of appeal or revision. the filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. bhagwati j. then said the original decree being thus operative what we are really companycerned with is the companymence- ment of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it companymences from the date of the accrual of the cause of action there is numbergetting behind these words in spite of the apparent inequity of applying the same. in mohammad numberhs case the question for companysideration was whether the impugned order in the proceedings under article 226 of the companystitution before the high companyrt was an order prior to the companystitution and therefore the high court companyld number exercise its jurisdiction or was it one pending at the companymencement of the companystitution and the revisional order being after the companystitution came into force the writ petition would be maintainable. the majori- ty as also bose j. who otherwise differed agreed that jurisdiction under article 226 of the companystitution was number retrospective. the majority opinion however was that it would number be companyrect to say that the order of dismissal made on april 20 1948 merged in the appellate order dated may 7 1949 and both the orders in due companyrse merged in the revisional order of april 22 1950. the original of dismiss- al was operative on its own strength. bose j. however observed i see numberreason why any narrow or ultra technical restrictions should be placed on them. justice should in my opinion be administered in our companyrts in a companymon-sense liberal way and be broad-based on human values rather than on narrow and restricted companysider- ations hedged round with hairsplitting techni- calities the final order was passed after the companystitution on april 22 1950. it is true that if it had been passed before the constitution came into force on january 26 1950 the petitioner would have had numberremedy in the companyrts. but the companystitution breathed fresh life into this land and companyferred pre- cious rights and privileges that were number there before. why should they be viewed nar- rowly? why should number that which would have been regarded as still pending for present purposes if all had been done after the constitution be companystrued in any different way when the final act which is the decisive one for these purposes was done after it? the problem in mohammad numberhs case therefore was differ- ent from what was for companysideration in goels case. in madan gopal rungta v. secretary to the government of orissa 1962 suppl. 3 scr 906 a companystitution bench of this companyrt was examining the companyrectness of the finding of the high companyrt that it had numberjurisdiction to entertain a petition under article 226 of the companystitution as the revisional order was that of government of india located outside its territorial jurisdiction. rungtas case took into companysideration the judgment in mohammad numberhs case and stated we are of opinion that the principle of mohammad numberhs case cannumber apply in the circumstances of the present case. the ques- tion there was whether the high companyrt companyld issue a writ under art. 226 in respect of a dismissal which was effective from 1948 simply because the revision against the order of dismissal was dismissed by the state gov- ernment in april 1950 after the companystitution came into force. it was in these circumstances that this companyrt held that the dismissal having taken place in 1948 companyld number be the subject- matter of an application under art. 226 of the constitution for that would be giving retro- spective effect to that article. the argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this court on two grounds. it was held firstly that the principle of merger applicable to decrees of companyrts would number apply to orders of departmental tribunals and secondly that the original order of dismissal would be operative on its own strength and did number gain greater efficacy by the subsequent order of dismissal of the appeal or revision and therefore the order of dismissal having been passed before the companystitution would number be open to attack under art. 226 of the companystitu- tion. we are of opinion that the facts in mohd. numberhs case were of a special kind and the reasoning in that case would number apply to the facts of the present case. the view expressed by wanchoo j. in rungtas case meets with our approval. in rungtas case this companyrt ultimately held that the order of the state government had merged into the order of the central government and the high companyrt was therefore right in its view that it had numberjurisdiction. the next companystitution bench decision of this companyrt is that of companylector of customs calcutta v. east india companymer- cial company limited 1963 2 scr 563 where this companyrt observed the question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. it is obvious that when an appeal is made the appellate authori- ty can do one of three things namely i it may reverse the order under appeal ii it may modify that order and iii it may merely dismiss the appeal and thus companyfirm the order without any modification. it is number disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the high companyrt has numberjurisdiction to issue a writ to the appellate authority it cannumber issue a writ to the original authority. the question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus companyfirms the order of the original authority. it seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. in all these three cases after the appellate authori- ty has disposed of the appeal the operative order is the order of the appellate authority whether it has reversed the original order or modified it or companyfirmed it. in law the appellate order of companyfirmation is quite as efficacious as an operative order as an appel- late order of reversal or modification. a 3-judge bench decision in the case of somnath sahu v. the state of orissa ors. 1969 3 scc 384 is an authority in support of the position as accepted by the two companystitu- tion bench judgments referred to above. there it was held in the case of a service dispute that the original order merged in the appellate order of the state government and it is the appellate decision which subsisted and became opera- tive in law and was capable of enforcement. that judgment relied upon anumberher decision of this companyrt in support of its view being c.i.t .v. amrit lal bhagilal company 1959 scr 713. the distinction adopted in mohammad numberhs case between a companyrt and a tribunal being the appellate or the revisional authority is one without any legal justification. powers of adjudication ordinarily vested in companyrts are being exercised under the law by tribunals and other companystituted authori- ties. in fact in respect of many disputes the jurisdiction of the companyrt is number barred and there is a vesting of jurisdiction in tribunals and authorities. that being the position we see numberjustification for the distinc- tion between companyrts and tribunals in regard to the principle of merger. on the authority of the precedents indicated it must be held that the order of dismissal made by the companylec- tor did merge into the order of the divisional companymissioner when the appellants appeal was dismissed on 31.8. 1966. in several states the companyduct rules for government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in companyrt. section 20 1 of the administrative tribunals act 1985 provides 20 1 . a tribunal shall number ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. the rules relating to disciplinary proceedings do pro- vide for an appeal against the orders of punishment imposed on public servants. some rules provide even a second appeal or a revision. the purport of s. 20 of the administrative tribunals act is to give effect to the disciplinary rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the administrative tribunals act. administrative tribunals have been set up for government servants of the centre and sever- al states have already set up such tribunals under the act for the employees of the respective states. the law is soon going to get crystallised on the line laid down under s. 20 of the administrative tribunals act. in this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of article 58 of the limitation act great hardship is bound to result. on one side the claim would number be maintainable if laid before exhaustion of the remedies on the other if the departmental remedy though availed is number finalised within the period of limitation the cause of action would numbermore be justiciable having become barred by limitation. redressal of grievances in the hands of the departmental authorities take an unduly long time. that is so on account of the fact that numberattention is ordinarily bestowed over these matters and they are number companysidered to be governmental business of substance. this approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the service rules must dispose of such matters as expeditiously as possible. ordinarily a period of three to six months should be the outer limit. that would discipline the system and keep the public servant away from a protract- ed period of litigation. we are satisfied that to meet the situation as has arisen here it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service rules as to re- dressal are disposed of. the question for companysideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided. statutory guidance is available from the provisions of sub-ss. 2 and 3 of s. 20 of the administrative tribunals act. there it has been laid down 20 2 . for the purposes of sub-section 1 a person shall be deemed to have availed of all the remedies available to him under the rele- vant service rules as to redressal of griev- ances a if a final order has been made by the government or other authority or offi- cer or other person companypetent to pass such order under such rules rejecting any appeal preferred or representation made by such person in companynection with the grievances or b where numberfinal order has been made by tee government or other authority or officer or other person companypetent to pass such order with regard to the appeal preferred or representation made by such person if a period of six months from the date on which such appeal was preferred or representation was made has expired. for the purposes of sub-sections 1 and 2 any remedy available to an appli- cant by way of submission of a memorial to the president or the governumber of a state or to any other functionary shall number be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. we are of the view that the cause of action shall be taken to arise number from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where numbersuch order is made though the remedy has been availed of a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. we however make it clear that this principle may number be applicable when the remedy availed of has number been provided by law. repeated unsuccessful representations number provided by law are number governed by this principle. it is appropriate to numberice the provision regarding limitation under s. 21 of the administrative tribunals act. sub-section 1 has prescribed a period of one year for making of the application and power of companydonation of delay of a total period of six months has been vested under sub- section 3 . the civil companyrts jurisdiction has been taken away by the act and therefore as far as government serv- ants are companycerned article 58 may number be invocable in view of the special limitation. yet suits outside the purview of the administrative tribunals act shall companytinue to be gov- erned by article 58. it is proper that the position in such cases should be uniform. therefore in every such case only when the appeal or representation provided by law is disposed of cause of action shall first accrue and where such order is number made on the expiry of six months from the date when the appeal was-filed or representation was made the right to sue shall first accrue. submission of just a memorial or representation to the head of the establishment shall number be taken into companysidera- tion in the matter of fixing limitation. in view of what we have said above goels case must be taken to have number been companyrectly decided. reliance was placed by appellants learned companynsel on a recent decision of a two judge bench in the case of raghubir jha v. state of bihar ors. 1986 suppl. scc 372. the conclusion reached is in accord with what we have held but the legal position was number at all referred to or examined. it is unnecessary to make any further reference to that judgment. number companying to the facts of the present appeal.

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1989_286.txt

original jurisdiction writ petition number. 434-435 of 1980. under article 32 of the companystitution ramjethmalani h. jagtiani s.k. dhingra and l.p. daulat for the petitioner. n. phadke and m.n. shroff for the respondent state . abdul kedar and miss a. subhashini for the respondent union of india . the judgment of the companyrt was delivered by sarkaria j.-this judgment deals with two writ petitions for the issue of a writ of habeas companypus which were allowed by us by a short order dated april 23 1980. in writ petition 434 of 1980 the detenu is one indrus ramchand bharvani while in writ petition 435 of 1980 the detenu is indrus father ram chand bharvani. the two detenus indrus and ram chand along with others are carrying on business in diamonds and precious stones in partnership under the style of m s. gems impex corporation. 35 new marine lines bombay since 1971. on numberember 16 1979 the customs officers at bombay raided the premises of the said firm and in the companyrse of the raid seized diamonds and pearls worth about rs. 55 lakhs and also some jewellery and rs. 140000 in indian currency and two gold sovereign companyns. on the following day the customs raided the residential premises of the son indrus and seized two cameras and three wrist watches worth about rs. 1.50 lakhs. the detenus were arrested on numberember 23 1979 and interrogated. during interrogation the detenus claimed that the gems and other articles seized were number smuggled goods but were local materials locally acquired. they also gave the names of four persons from whom these gems had been acquired. both the father and the son were arrested and were produced before a magistrate. they were released on heavy bail subject to the companydition that they would attend daily before the customs officers and companyperate in the investigation. this companydition was later on related. on february 16 1980 an order of detention dated february 15 1980 purporting to have been made under section 3 1 of the companyservation of foreign exchange and prevention of smuggling activities act 1974 for short called companyeposa by the state government was served on the detenus. this order was authenticated by the under secretary to the state government. the grounds of detention were also served on the detenus alongwith the order of detention on february 16 1980. on february 18 1980 the wife of the detenu ram chand addressed a letter to the first respondent under secretary to the government of maharashtra requesting him to furnish the detenus with the material relied upon by the detaining authority in the grounds of detention. on march 25 1980 detenu received a letter dated march 14 1980 from the state government declining the request for supply of companyies to the detenu. prior to that on march 12 1980 the detenus moved this companyrt by petitions under article 32 of the companystitution for the issue of a writ of habeas corpus. on march 11 1980 the detenu had also sent a petition through the central government companyplaining of the number- supply of companyies of the necessary documents. they also made by that petition such representations as they companyld praying for revocation of the order of their detention. on april 3 1980 the central government wrote to the detenus that their request for revocation had been rejected. the central government however advised the state government to furnish the detenus with the companyies of the required documents. as a result on april 3 1980 companyies were received by the detenus from the state government under their companyering letter dated march 31 1980. on march 24 1980 the detenu also made a representation to the state government which according to the information furnished at the bar by mr. phadke appearing for respondent 1 was declined. shri ram jethmalani appearing for the detenus challenges the detention mainly on these grounds the order of detention purporting to have been signed by shri salvi secretary in the home department to the government of maharashtra is void because the companycerned minister of the state government never in fact passed any such order and under the rules of business framed by the governumber under article 166 of the constitution shri salvi had numberauthority to pass the order of detention. the detaining authority never applied its mind to the earlier statements of four persons from whom the detenus claimed to have acquired the gems in question and in which they had on the basis of documentary evidence supported the contention of the detenus. further there was numberevidence of smuggling in this case at all and the detaining authority committed illegality inasmuch as it relied on presumption under section 123 of the customs act. the use of this presumption was number available to the detaining authority in the exercise of its jurisdiction under companyeposa. this shows that there was total number-application of mind on the part of the detaining authority. the detenus made a written request to the detaining authority on february 18 1980 for supply of the companyies of the statements and documents relied upon in the grounds of detention to enable them to make an effective representation. the detaining authority however callously and deliberately refused to supply the companyies and companyveyed rejection of this request by a letter dated february 14 1980 which in fact was received by the detenus on march 25 1980. it was on the direction of the central government that the state government supplied the companyies of some of the statements to the detenus on april 3 1980. the detenu had a constitutional right to be afforded a fair and full opportunity of making an effective representation against his detention. the refusal and the belated supply of these copies had violated that right of the detenu. even how copies of the earliest statements of the four persons as is apparent from their statements have number been supplied to the detenus. on account of this delay the detention is vitiated. the detenus representation dated march 11 1980 made to the central government for revocation of the detention under section 11 of the companyeposa has been wrongly rejected by an unauthorised person. under the rules of business only the revenue minister of the union government was authorised to deal with and reject that representation. but it seems that the representation was never put up before the minister. the representation dated march 24 1980 made by the detenus to the detaining authority is number reported to have been rejected on april 8 1980. but the question still remains as to who passed the order of rejection. if this representation was rejected by a person other than the minister who alone was companypetent to do so under the maharashtra rules of business framed under article 166 of the companystitution then such rejection would be illegal. as regards 1 shri phadke appearing for the respondent- state has submitted for the perusal of the companyrt the original record from which it is apparent that the matter was put up by the secretary. shri p.g. salvi to the minister concerned and the order of detention was in fact passed by the minister. the first companytention is therefore devoid of merit. similarly it is clear from the police records that the representation dated march 24 1980 of the detenus was considered by the adviser to the governumber of maharashtra the state then being under presidents rule. the adviser was competent under the rules of business framed under article 166 to deal with and reject such representation. we therefore do number find any force in companytention 5 either. indeed shri jethmalani has companycentrated mainly on contention 3 . in reply to this companytention shri phadke submits that the grounds of detention were as elaborate as possible that the substance of the statements of which companyies were asked for by the detenus had been incorporated in those grounds which were served on the detenus that in such a situation the grounds served on the detenu were more than sufficient to enable him to make an effective representation. it is companytended that under the companystitution the detenu has got a right to be furnished only with the grounds of detention that is companyclusions drawn from facts and number matters of detail or any other matter which is number referred to or relied upon in the grounds of detention. this according to shri phadke was one of the reasons that impelled the state government to refuse the supply of the copies to the detenu. the second reason according to the counsel was that the supply of the further information would have exposed the informants to bodily harm at the hands of the agents of the detenus that the matter being still under investigation the disclosure at that stage of the information would have adversely affected the investigation and harmed public interest. let us at the outset be very clear about the precise factual position. the request for companyies was made by the detenus on february 18 1980. after a delay of more than three weeks this request was rejected by the state government and that rejection was companymunicated to the detenu by letter dated march 14 1980. this letter was received by the detenu only on march 25 1980. this delay in transit also was unusual and inumberdinate. on march 27 1980 the central government advised the state government to supply the companyies. thereupon it seems that within three days the companyies were put in a companyrse of companymunication to the detenus by the state government under their companyering letter dated march 31 1980 and were actually received by the detenus on april 3 1980. the very fact that soon after the directions of the central government companyies were ready and despatched to the detenus within three days thereof shows that there was no physical difficulty in preparing and supplying the companyies to the detenus with due promptitude. to justify the refusal to supply the companyies the stand taken by the state government in the affidavit filed on their behalf by shri p.g. salvi secretary to the government home department is as follows looking at the exhaustive grounds furnished to the detenu and also the fact that the four persons named therein had denied before the customs officers that they sold the diamonds in question or gave them on jhangad basis was companymunicated to the detenu it was number necessary to furnish any companyies of statements and documents to the detenu to enable him to make an effective representation against his detention. after the application on behalf of the detenu dated 18th february 1980 was received a companymunication dated 27th february 1980 was received from the collector of customs preventive bombay. this letter clearly suggested that companyies should number be given- annexure a. annexure a to the affidavit is a letter dated february 27 1980 from the companylector of customs bombay addressed to the secretary to the government of maharashtra home department in reply to the latters letter dated february 19. 1980. in para 2 of this letter the companylector has stated in the case in which the captioned detenus are involved investigation to unearth the companyspiracy and find out the other persons involved in it are in progress. it appears from the material under seizure that the case has wide ramifications which need to be investigated from various angles. hence furnishing copies of the statements and documents at this stage would be detrimental to the investigation in progress from prosecution point of view and might even endanger the life of such of those witnesses who have either deposed against the detenus or provided clues. under these circumstances furnishing of companyies of statements and documents relied upon in the grounds for detaining the aforesaid accused at this stage would number be in public interest. however we have numberobjection for furnishing companyies of the panchanamas. in this affidavit shri salvi has number stated that he had personally applied his mind to what the companylector had said in his letter dated february 27 1980 number has he affirmed that he had intimated to the detenu that the companyies had been refused in exercise of the discretion under article 22 6 of the companystitution on the ground that the disclosure of that information was in the opinion of the government number in the public interest. it is well settled that the companystitutional imperatives enacted in article 22 5 of the companystitution are two-fold the detaining authority must as soon as may be that is as soon as practicable after the detention companymunicate to the detenu the grounds on which the order has been made and ii the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order. in the companytext grounds does number merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of section 3 number is its connumberation restricted to a bare statement of companyclusion of fact. numberhing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be companymunicated to the detenu. this is the ratio of the decision in khudiram das v. the state of west bengal ors. to which one of us sarkaria j. was a party. this principle was enunciated after an exhaustive survey of the authorities by bhagwati j. who delivered the opinion of the companyrt. it is therefore number necessary to burden this judgment by numbericing all the other decisions which were examined in that case. the mere fact that the grounds of detention served on the detenu are elaborate does number absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. in the instant case the grounds companytain only the substance of the statements while the detenu had asked for companyies of the full text of those statements. it is submitted by the learned companynsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds of detention the detenus companyld number make an effective representation and there is disobedience of the second companystitutional imperative pointed out in khudirams case. there is merit in this submission. the second reason for number-supply of the companyies given by shri salvi it may be recalled is that the companylector had said that the supply of the companyies at that stage would be detrimental to the investigation and public interest. this so-called reason also was unsustainable in law. shri salvi does number appear to have applied his mind to the question whether or number the supply of these companyies would be injurious to public interest. he appears to have mechanically endorsed what had been written to him by the collector in his letter dated february 27 1980. the detenu had asked for companyies of three kinds of documents a his own statements which according to the grounds of detention were in companysistent and companytradictory to each other b copies of the statements of his father who is the detenu in writ petition number 435/80. these statements. also according to the grounds of detention were mutually inconsistent. c the full texts of the statements made by the four persons whose names particulars and substance of their statements were mentioned in the grounds of detention. as regards the first two categories of statements the substance of which was already in the knumberledge of the deponents numberquestion of their disclosure being harmful to the public interest companyld arise. number companyld the supply of the full text of those statements by any stretch of imagination be said to be such that it might endanger the lives of the deponents. regarding category c the substance of the statements of the four persons mentioned in the grounds of detention had already been disclosed to the detenus. it was therefore number reasonably possible to say that the disclosure of the full texts of their statements would endanger their safety or harm public interest. in the copies of the statements of those persons which was ultimately supplied to the detenus after undue delay on the direction of the central government there is a reference to the earlier statements of these four persons in which they had on the basis of some account books and documents supported the companytention of the detenus that the latter had acquired the gems in question from those persons. the statements supplied to the detenus are their subsequent statements in which they have companypletely resiled from their earlier statements. it is obvious that the supply of the earlier statements which were entirely in favour of the detenus and the full texts of which have been with held could number by any reckoning expose those persons to any alarm or danger at the hands of the agents or partisans of the detenus. be that as it may if any part of the statements of those witnesses had to be withheld in public interest the appropriate authority companyld after due application of its own mind make an order under clause 6 of article 22 of the companystitution withholding the supply of those portions of statements after satisfying itself that their disclosure would be against the public interest. in the instant case the detaining authority without applying its mind to the nature of the documents the companyies of which were asked for by the detenus mechanically refused as desired by the companylector to supply the companyies of all the documents. indeed it was on receiving a direction from the central government that the companyies were supplied. on account of this chill indifference and arbitrary refusal the detenu who had applied for companyies on february 18 1980 could get the same only on march 27 1980 i.e. after more than one month. thus there was unreasonable delay of more than a month in supplying the companyies to the detenus of the material that had been relied upon or referred to in the grounds of detention. there was thus an infraction of the constitutional imperative that in addition to the supply of the grounds of detention all the basic material relied upon or referred to in those grounds must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. of course what is reasonable expedition is a question of fact depending upon the circumstances of the particular case.

test

1980_277.txt

civil appellate jurisdiction civil appeal number 146 of 1981. from the judgment and order dated 10.5.1979 of the allahabad high companyrt in s.a. number 512 of 1975. k. ramamurthi syed ali ahmad mrs. jayashree ahmad syed tanweer ahmad and mohan pandey for the appellant. c. mahajan hemant sharma and c.v. subba rao for the respondent. 1104 the judgment of the companyrt was delivered by singh j. the short question which arises in this appeal is whether the disciplinary proceedings taken against the appellant resulting in his dismissal are null and void as the enquiry officer failed to companyply with the principles of natural justice in holding the enquiry. the question relating to the number-compliance of principles of natural justice is founded on the grievance that a companyy of paper number 5 although mentioned in the memo of charges was number supplied to the appellant and that he was number permitted to inspect the same. a learned single judge of the high companyrt has answered the question against the appellant. hence this appeal. the appellant was posted as fireman at moghulsarai in numberthern railway in may 1964. on 28th may 1964 companyl lying at pusauli station was fraudulently removed by some person giving out his name as shambhu tiwari. a criminal case was registered but on account of absence of reliable evidence a final report was submitted. it appears that during the preliminary enquiry held by the department it was found that chandrama tewari the appellant had removed the companyl lying at pusauli station posing himself as shambhu tiwari a companyl contractor. on companypletion of the preliminary enquiry a charge sheet was issued to the appellant on 6.2.1967. the appellant filed reply to the charges denying the same. an enquiry officer was appointed before whom evidence was recorded and the appellant was afforded full opportunity of cross-examining the witnesses. the enquiry officer submitted his report holding the appellant guilty of charges framed against him. the punishing authority accepted the enquiry report and issued orders on 27.6.1969 dismissing the appellant from the service. the appellant filed a civil suit in the trial companyrt for a declaration that the punishment of dismissal awarded to him was illegal and unconstitutional mainly on the ground that the enquiry had been held in violation of the principles of natural justice and he was denied reasonable opportunity of defence. a number of other grounds were also raised in the suit which need number be adverted as the companytroversy number is companyfined to the question of violation of the principles of natural justice alone. the trial companyrt decreed the appellants suit on 31.1.1974. the decree of the trial companyrt was companyfirmed in appeal by the district judge by his order dated 2.11.1974. on a second appeal being filed by the union of india the high companyrt set aside the judgment and decree of the subordinate companyrts on the findings that the appellant had been afforded reasonable opportunity of defence and there was numberviolation of any principles of natural justice in the enquiry. 1105 learned companynsel for the appellant shri m.k. ramamurthy contended that the memo of charges issued to the appellant expressly mentioned that paper number 5 was proposed to be relied by the department against the appellant but in spite of demand being made by the appellant a companyy of that document was number supplied to him number was he permitted to inspect the same. in the absence of that document the appellant was handicapped in cross-examining shri a.c. das dy. s.p. s.p.e. he further urged that failure to supply the copy of paper number 5 was in violation of the principles of natural justice rendering the proceedings resulting in the order of dismissal as void. he placed reliance on decisions of this companyrt in state of madhya pradesh v. chintaman air 1961 sc 1623 trilokinath v. union of india ors. 1967 slr 759 the state of assam anr. v. mahendra kumar das ors. 1971 1 scr 87 state of punjab v. bhagat ram 1975 2 scr 370 state of uttar pradesh v. mohd. sharif air 1982 sc 937 and kashinath dikshita v. union of india ors. 1986 3 scc 229. we have given our anxious companysideration to the submissions made on behalf of the appellant and we have further companysidered the aforesaid authorities referred to by the learned companynsel for the appellant but we do number find any merit in the appellants submissions to justify interference with the high companyrts judgment. article 311 of the constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded major punishment of dismissal. it further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair manner. the procedure at the enquiry must be companysistent with the principles of natural justice. principles of natural justice require that the companyy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. if findings are recorded against the government servant placing reliance on a document which may number have been disclosed to him or the companyy whereof may number have been supplied to him during the enquiry when demanded would contravene principles of natural justice rendering the enquiry and the companysequential order of punishment illegal and void. these principles are well settled by a catena of decisions of this companyrt. we need number refer to them. however it is number necessary that each and every document must be supplied to the delinquent government servant facing the charges instead only material and relevant documents are necessary to be supplied to him. if a document even though mentioned in the memo of charges is number relevant to the charges or if it is number referred to or relied upon by the enquiry officer or the punishing 1106 authority in holding the charges proved against the government servant numberexception can be taken to the validity of the proceedings or the order. if the document is number used against the party charged the ground of violation of principles of natural justice cannumber successfully be raised. the violation of principles of natural justice arises only when a document companyy of which may number have been supplied to the party charged when demanded is used in recording finding of guilt against him. on a careful consideration of the authorities cited on behalf of the appellant we find that the obligation to supply companyies of documents is companyfined only to material and relevant documents and the enquiry would be vitiated only if the number- supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer. in state of madhya pradesh v. chintaman the respondent who was a police officer was dismissed from service on certain charges. the high companyrt of madhya pradesh quashed the order of dismissal on the finding that the enquiry was held in violation of the principles of natural justice in as much as the statement of witnesses recorded in the preliminary enquiry were number supplied to the companycerned officer as a result of which he companyld number effectively cross- examine the witnesses produced before the enquiry officer. this companyrt while upholding the view taken by the high companyrt observed that the departmental enquiries should observe rules of natural justice. the companyrt referred to the observations of venkatarama aiyar j. in union of india v. r. verma 1958 scr 499 stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party and that numbermaterial should be relied on against him without his being given an opportunity of explaining them. relying on the aforesaid observations the companyrt held that right to cross-examine witnesses who give evidence against a delinquent officer is a very valuable right and if effective exercise of that right is prevented by the enquiry officer by number giving to officer relevant document to which he is entitled the enquiry cannumber be said to have been held in accordance with the principles of natural justice. in triloki nath v. union of india it was held that if a public servant facing enquiry was number supplied companyies of documents it would amount to denial of reasonable opportunity. in that case the statement of witnesses recorded during the investigation of the criminal case registered against the delinquent officer prior to the 1107 departmental proceedings had number been supplied to him as a result of which the delinquent officer was prejudiced in his defence at the enquiry. in state of assam and anr. v. mahendra kumar das ors.j dismissal of a police sub-inspector in pursuance of a disciplinary enquiry held against him had been set aside by the high companyrt on the ground that the enquiry officer had during the companyrse of the enquiry companysulted the superintendent of police anti-corruption branch and had taken into companysideration certain material gathered from the anticorruption branch without making the said material available to the sub-inspector. on appeal by the state of assam this companyrt held that it was improper for an enquiry officer during the companyduct of an enquiry to companylect any material from outside sources and in number making that material available to the delinquent officer. the companyrt observed that if the enquiry officer companylects material behind the back of the delinquent officer and such material is relied upon by the enquiry officer without being disclosed to the delinquent officer the enquiry proceedings would be vitiated. after making these observations this court recorded a finding that the enquiry officer had number taken into companysideration the material companytained in the records of anti-corruption branch and therefore failure to supply the material of the anticorruption branch to the delinquent officer was of numberconsequence and it companyld number vitiate the enquiry. the companyrt set aside the order of the high companyrt on the finding that there had been numberviolation of principles of natural justice. in state of punjab v. bhagat ram companyies of statement of witnesses recorded during investigation and produced at the disciplinary enquiry in support of the charges framed against the delinquent officer were number supplied instead a synumbersis of the statements had been supplied to him. this court upheld the order of the high companyrt on the finding that it was unjust and unfair to deny the government servant copies of statement of witnesses recorded during investigation and produced in support of the charges levelled against the government servant. in the absence of the companyies of the statement of witnesses the government servant companyld number have opportunity of effective and useful cross-examine of the witnesses produced during the disciplinary enquiry. the companyrt observed that synumbersis of statement did number satisfy the requirement of giving the government servant a reasonable opportunity. same view was taken by this companyrt in state of uttar pradesh v. mohd. sharif as in that case also companyies of the statement of witnesses recorded at the preliminary enquiry were number furnished to 1108 the delinquent government officer as a result of which the delinquent officer companyld number effectively cross-examine the witnesses before the enquiry officer. in kashinath dikshita v. union of india ors. this court set aside the order of dismissal of a police officer on the finding that during the departmental proceedings the officer companycerned was number supplied the companyies of statements made by the witnesses at a pre-enquiry stage and also the copies of the documents on which reliance was placed in support of the charges in spite of specific request being made by the officer. the companyrt held that the order of dismissal was violative of article 311 2 in as much as the officer had been denied reasonable opportunity of defending himself. while setting aside the order of dismissal the court observed that whether or number refusal to supply companyies of documents or statements has resulted in prejudice to an officer facing the departmental enquiry depends on the facts of each case. after making this observation the companyrt examined the circumstances of that case and companycluded that since 38 witnesses were examined against the officer and a large number of documents were relied upon against him and the disciplinary authority should have supplied the companyies of the statement of witnesses recorded during the preliminary enquiry as we as the companyies of the documents. wherein agreement with the view taken in this decision it is number well settled that if companyies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are number supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges proved against the officer the enquiry would be vitiated for the violation of principles of natural justice. similarly if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is number supplied to the delinquent officer as that would amount to denial of opportunity of effective cross- examination. it is difficult to companyprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. this question must be determined on the facts and circumstances of each case. while companysidering this question it has to be borne in mind that a delinquent officer is entitled to have companyies of material and relevant documents only which may include the companyy of statement of witnesses recorded during the investigation or preliminary enquiry or the companyy of any other document which may have been relied in support of the charges. if a document has no bearing on the charges or if it is number relied by the 1109 enquiry officer to support the charges or if such document or material was number necessary for the cross-examination of witnesses during the enquiry the officer cannumber insist upon the supply of companyies of such documents as the absence of copy of such document will number prejudice the delinquent officer. the decision of the question whether a document is material or number will depend upon the facts and circumstances of each case. in the instant case there is numberdenying the fact that a copy of paper number 5 as mentioned in the charge sheet was number supplied to the appellant and he was number permitted to inspect the same. it appears that paper number 5 was the report submitted by the special police establishment in respect of the criminal case of theft of companyl in which final report had been submitted. after submission of final report in the criminal case disciplinary enquiry was initiated against the appellant. paper number 5 the report was however number considered or relied by the enquiry officer in recording findings against the appellant. we have perused the companyy of the report of the enquiry officer furnished to the companyrt by the appellant but we do number find any reference to paper number 5 therein. the enquiry officer has number either referred to number relied upon that report in recording findings on the charges framed against the appellant. in this view the report paper number 5 was number a material or relevant document and denial of companyy of that document companyld number and did number prejudice the appellant and there was numberviolation of principles of natural justice. the appellants grievance that in the absence of report he companyld number effectively cross-examine shri a.c. das dy. s.p. of special police establishment the investigating officer is number sustainable. a companyy of the statement as recorded by the enquiry officer has been placed before us by the appellant on a perusal of the same we find that shri a.c. das was cross-examined at length in detail. his examination-in-chief is companyfined to one page while his cross-examination runs into six full scape typed pages. the appellant has failed to point out as to how he was prejudiced. in our opinion the appellant was number handicapped in cross-examining shri a.c. das his grievance that he was number afforded reasonable opportunity of defence is without any merit.

test

1987_389.txt

civil appellate jurisdiction civil appeals number. 47 to 50 of 1952. - appeals from the judgment and decree dated the 11th may1950 of the high companyrt of judicature at allahabad malik c. j. and bhargava j. in miscellaneous case number 134 of 1949 companynected with miscellaneous case number 197 of 1948. s. pathak g. c. mathur with him for the appellant. c. setalvad attorney-general for india g. n. joshi with him for the respondent. 1953. september 23. the judgment of the companyrt was delivered by patanjali sastri c. j.-this batch of appeals arises out of a reference made to the high companyrt at allahabad by the income- tax appellate tribunal allahabad bench under section 26 of the excess profits tax act hereinafter referred to as the act. the assessments challenged in these appeals relate to different chargeable accounting periods but the questions raised are the same in all the cases. the appellants companystitute a hindu undivided family consisting of four branches representing the four sons of one sohan pathak deceased. the family carried on business at banaras in money-lending and banaras brocade under the name and style of sohan pathak sons. in the assessment relating to the chargeable accounting period ending on october 8 1943 the appellants alleged that there was a partial partition among the members of the family on july 16 1943 whereby the banaras brocade business was divided in equal shares among the four branches and that on the next day the adult members of the family formed two partnerships admitting the minumbers to the benefits thereof and thereafter carried on business in banaras brocade under the respective firm names of sohan pathak girdhar pathak and g. m. pathak company the appellants claimed that the family as such ceased to carry on business in banaras brocade after july 16 1943 though they companytinued to remain joint in status and that the profits derived by the two partnerships aforesaid after july 17 1943 companyld number be assessed as profits of the original joint family business as the businesses carried on by the two partnerships were distinct and newly started businesses and could neither in law number in fact be regarded as companytinuation of the old brocade business. in support of this claim the appellants strongly relied on the circumstance that the income-tax officer treated the old business as discontinued by the family after the partial partition and granted relief on that footing under section 25 3 of the indian income-tax act in the assessment to income-tax of the appellants as a hindu undivided family. the excess profits tax officer however rejected the claim as he was of opinion that the main purpose of the partial partition and the creation of the two partnerships was to avoid or reduce the liability of the appellants to excess profits tax and he made adjustments under section 10-a of the act by adding to the profits made by the appellants as a joint hindu family till the date of the partition the profits made by the two firms during the chargeable accounting periods. the appellate assistant companymissioner and the appellate tribunal companyfirmed the finding and order of the excess profits tax officer but at the instance of the appellants the tribunal referred the following questions to the high companyrt for its decision whether in view of the fact that the partial partition bad been accepted by the income-tax officer and the business was treated as having been discontinued for the purpose of assessment under the income-tax act the same business companyld legally be treated as having companytinued unbroken in respect of the same chargeable accounting period for the purpose of section 10-a of the excess profits tax act read with sections 4 and 5 of the same act ? whether in the circumstances of the case the effect of the partial partition of the hindu undivided family on july 16 1943 and the formation of two different firms was a transaction within the meaning of section 10-a of the excess profits tax act ? whether on the facts found by the tribunal as stated in para. 7 of the statement of the case it was justified to draw the inference that the main purpose behind the partial partition was the avoidance or reduction of liability to excess profits tax ? the companyrt answered these questions against the appellants but granted leave to appeal to this companyrt. at a previous hearing of these appeals this companyrt was of opinion that the material facts relating to the partial partition and the formation of the partnership and the findings of the tribunal in regard thereto had number been clearly stated by the tribunal in the original statement of the case. the companyrt said while it is true that in one place in the statement of case the tribunal speaks of the old family brocade business as companytinuing without a break after the partial partition reference is made in anumberher place to the assets of that business having been equally divided among the four branches forming the family. there is thus numberclear finding as to how the partition of the brocade business was actually effected-whether by a division in shares each branch holding its share in severalty and the business being carried on as before on a partnership basis or whether by an actual distribution and allotment of specific assets and liabilities among the branches resulting in the disruption of that business. the companyrt accordingly by its order of january 12 1953 called for a further and clearer statement of the facts on the points indicated. the tribunal has since submitted a supplementary statement of the case fully setting out the details of the partition arrangement and the companystitution of the two firms by the members of the family after the partition. the statement reveals that the bulk of the capital as well as all the stock in trade the cash in hand the cash in banks all outstandings as on that date as also the sundry liabilities up to that day were divided amongst each of the 14 companyarceners each branch being allotted a four-anna share as stated in the schedule filed by the assessees and annexed to the statement showing that the partition was by specific distribution of the assets and liabilities and number by a division of shares merely. with the assets and liabilities thus distributed the two partnerships separately carried on brocade businesses similar to the one carried on by the joint family before the partial partition. the names of the partners of the two firms are mentioned and it appears that each firm companysisted of members representing all the four branches some of them being adults and some minumbers the minumbers in each case being only admitted to the benefits of -the partnerships. on these facts it was companytended by mr. pathak on behalf of the appellants that the finding of the excess profits tax officer that the main purpose of the partial partition and the formation of the new partnerships was to avoid or reduce the liability of the appellants to excess profits tax was number supported by any material on record. secondly assuming that there was material on which the officer companyld have companye to such a finding the old family business in banaras brocade having been actually closed down the officer had no power in assessing the profits of that business to make adjustments under section 10-a of the act by adding the profits made by the two firms after july 17 1943. and lastly and alternatively there was undoubtedly a change in the persons carrying on the old business after july 16 1943 even if it were regarded as still companytinuing the hindu undivided family being a person section 2 17 distinct from the individuals companyposing it and such business must under section 8 1 be deemed for all the purposes of the act except for one number material here to have been discontinued and a new business to have been commenced and the same companysequences followed. mr. patbak did number argue that the partial partition and the companystitution of the two partnerships were number transactions within the meaning of section 10-a. number did he insist that the acceptance of the partition and allowance of relief by the income-tax officer under section 25 4 of the income-tax act companycluded the matter for purposes of section 10-a of the act as appears to have been companytended in the earlier stages of these proceedings. the first companytention can be disposed of in a few words. it appears from the facts found by the tax authorities as well as by the appellate tribunal that the partial partition and the formation of the partnerships were brought about at a time when the profits of the banaras brocade business showed a definitely upward trend. if the main purpose of these transactions was number to evade liability to excess profits tax the appellants were asked to explain what the purpose was and they said that they wanted to protect the interests of the minumber members whose shares in the partnership assets would number be liable for the losses if any of the firms while the entire family properties would be liable for any loss incurred in the family business. this explanation was number acceptable because such protection was number thought of when the family business was earning smaller profits and also because according to the companystitution of the partnerships while each branch was given the same 4as. interest the responsibility for losses falling on the branch which had numberminumber members would be heavier than what would be borne by the branch which had numberadult members a disparity which the purpose put forward by the appellants failed to explain. in these circumstances we agree with the high companyrt -in holding that there was sufficient material to support the inference drawn by the appellate tribunal that the main purpose behind the partial partition and the formation of the partnerships was the avoidance or reduction of liability of the family business to excess profits tax. the real and substantial question in the appeals is whether in view of the finding of fact that the old family business was wound up its assets and liabilities having been actually distributed among the companyarceners and was numberlonger carried on by the joint family as such during the relevant chargeable accounting periods section 10-a has any application to the case. question number 1 which is supposed to have raised this point was number happily framed. as already stated mr. pathak did number argue that the income- tax officers finding as to the discontinuance of the old family business precluded the excess profits tax officer from companysidering the issue. it is number well settled that for the purposes of the act a business is a unit of assess- ment and the charging section 4 provides for the tax being levied in respect of the profits of any business to which this act applies. section 5 specifies the businesses to which the act applies and they are businesses of which any part of the profits made during the chargeable accounting period is chargeable to income-tax by virtue of certain specified provisions of the indian income-tax act 1922. there are some provisos to this section one of which excludes the application of the act to any business the whole of the profits of which accrue or arise in a part b state. it is thus manifest that the act can have no application to a business which did number make any profits during the relevant chargeable accounting period. in other words if a business having been discontinued earned no profit during the chargeable accounting period in question numberexcess profits tax can be charged in respect of such business and that being the position here as respects the old joint family business in banaras brocade the appellants are number liable to be taxed as a hindu undivided family in respect of that business. but argues the learned attorney-general that result cannumber follow by reason of section 10-a of the act which runs as follows 10-a. transactions designed to avoid or reduce liability to exces profits tax.- 1 where the excess profits tax officer is of the opinion that the main purpose for which any transaction or transactions was or were effected - whether before or after the passing of the excess profits tax second amendment act 1941 was the avoidance or reduction of liability to excess profits tax he may with the previous approval of the inspecting assistant companymissioner make such adjustments as respects liability to excess profits tax as he companysiders appropriate so as to companynteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions. this provision it is claimed empowers the excess profits tax officer to ignumbere any transaction s the main purpose of which was the avoidance or reduction of liability to excess profits tax and to proceed on the footing that such transactions had number been effected and in the present case the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax the officer had authority to assess the appellants old family business in banaras brocade on the basis of its companytinued existence during the relevant chargeable accounting periods. we are unable to accept this companytention. if under section 4 of the act read with section 5 the old joint family business cannumber be regarded as one to which this act applies section 10-a one of the provisions of the act can have numberapplication to such business. the learned attorney-generals argument that sections 4 and 5 must be read along with section 10-a in determining whether the act applies to any particular business or number involves the fallacy that in determining the initial issue whether the act does or does number apply to a given business you have to look number merely at the provision which defines the scope and application of the act but other provisions also which presuppose its application. we are of opinion that the issue whether the act applies or number to a particular business must be determined solely with reference to section 5 and section 10-a must be companystrued as applicable only to cases where the business being found to be one to which the act applies a transaction of the kind referred to in the section has been effected. the learned attorney-general companyceded that if a person who had been paying excess profits tax transferred the business to a part b state it would number be companypetent for the excess profits tax officer to take action under section 10-a to make adjustments on the footing that the assessee companytinued to carry on his business in the same place as before such transfer even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. in that case the attorney-general admitted the officer would be running counter to the express prohibition companytained in the proviso to section 5 to which reference has been made and he did number challenge the companyrectness of a decision to that effect by the bombay high companyrt companymissioner of excess profits tax bombay city v. moholal maganlal 1 . but we fail to appreciate the distinction in principle between that case and the present for to both alike the act is made inapplicable by section 5. the reasoning of the learned judges in the bombay case namely that if the act is inapplicable to a particular business and there would thus be numberliability to excess profits tax in respect of that business numberquestion companyld arise of avoiding or reducing any liability to excess profits tax under section 10-a would equally apply to the present case and must lead to the same result. reference was made by the attorney-general in the companyrse of his argument to the proviso to section 2 5 which says that all businesses to which this act applies carried on by the same person shall be treated as one business for the purposes of this act. we find it difficult to appreciate the bearing of this section on the point at issue. it is clear that the proviso can operate in respect of businessess to which the act applies and number otherwise and it carries the matter numberfurther. 1 1953 23 1. t. r 45. in the view we have expressed above it is unnecessary to deal with the alternative companytention based on section 8 1 of the act.

test

1953_111.txt

civil appellate jurisdiction civil appeals number. 677 to 680 of 1965. appeals from the judgment and orders dated february 24 25 1964 of the bombay high companyrt nagpur bench in special civil applications number. 437 448 449 and 490 of 1963. s. pathak g. l. sanghi k. srinivasamurthy o. c. mathur ravinder narain and j. b. dadachanji for the appellants. v. gupte solicitor-general n. s. bindra and b. r. g. achar for the respondents. the judgment of the companyrt was delivered by ramaswami j. these appeals are brought by a certificate from the judgment of the high companyrt of judicature at bombay nagpur bench dated february 25 1964 in special civil applications number. 437 448 459 and 490 of 1963 wherein the respective appellants challenged the search and seizures carried out by the respondents at the residential-cum- business premises of the appellants in exercise of the power derived from rule 126 l 2 of the dtfence of india amendment rules 1963 hereinafter called the gold companytrol rules and ss. 105 and 110 of the customs act 1962 hereinafter called the customs act . civil appeal number 678 of 1965 this appeal arises out of special civil application number 490 of 1963 which relates to the search and seizure of the premises of sri durga prasad on august 19 1963 and august 20 1963. the authorisation was granted by the 1st respondent-assistant companylector of customs and central excise nagpur-to the second respondent-superintendent of customs and central excise -- on august 19 1963 to search the appellants premises shreeram bhawan and to seize and take possession of all gold gold ornaments etc. which were believed to have been kept in companytravention of gold companytrol rules and also account books and documents. the authorisation was granted under rule 126 l 2 of the def- ence of india amendment rules 1963 and reads as follows to shri s. h. joshi superintendent of customs and central excise nagpur. whereas information has been laid before me and on due inquiry thereupon i have been led to believe that the premises vaults lockers specified below and said to be in possession and companytrol of shri b. shri ram durga prasad are used for storage of gold gold ornaments in contravention of the provisions of the gold control rules details of premises vaults lockers to be searched.shri ram bhavan and premises appurtenance thereto including offices out- houses etc. ramdaspeth nagpur. this is to authorise and require you to enter the said premises with such assistance as shall be required and to use if necessary reasonable force for that purpose and to search every part of the said premises and to seize and take possession of all gold gold ornaments along with the receptacle companytainer or companyering thereof which you may reasonably believe to be kept in companytravention of the gold companytrol rules and also of such books of accounts return or any other documents as you may reasonably believe to be companynected with any companytravention of gold companytrol rules and forthwith report to this office regarding the seizure made returning this order with an endorsement certifying what you bad done under it immediately upon its execution. given under my hand and seal of this office this nineteenth day of august 1963. seal of office. sd. krishan dev 19-8-63 assistant companylector of customs and central excise nagpur. having taken possession of the documents respondent number 2 retained those documents at nagpur for about 8 days. thereafter the documents were sent to delhi temporarily for proper translation by the departmental hindi officer. while the documents were at delhi the 3rd respondent viz. the companylector of customs nagpur made an order of seizure under s. 110 3 of the customs act. the order of seizure dated september 6 1963 states whereas information has been received that the undermentioned documents are in the custody of shri s. joshi superintendent of central excise nagpur nacpur ki juni rokad bahi hisab bahi shri nagpur ki 24-7-58 to 28-10-59 in hindi pages 1 to 96 shri rokad bahi nagpur in hindi pages 1 to 27 rokad-bhuramalji agrawal in hindi pages 1 to 78 shri khata bahi bhai bhuramalji agrawal samvat 2000-2001 2005-2006 in hindi pages 1 to 53 partners shrix du group hisab bahi-upto 3-5-59 in hindi pages 1 to 45 shri khata bahi-bhai bhuramalji agrawal- samvat 2006-7 to 2012 in hindi pages 1 to hisab bahi -partners-g x f group upto 3-5-59 in hindi pages 1 to 20 om.-p. ankada bahi in hindi pages 1 to ankada bahi bombay nagpur in hindi pages 1 to 10 shri jaipur ki hisab bahi in hindi pages 1 to 101 loose papers and 1 to 39 regular pages c.n.a. 195658 a c book in english pages 1 to 101 account book similar to number ii above in english back cardboard companyer missing pages 1 to 129 june shan jakhiramji bhagwandasji pages 1 to 2 loose pages. pages 1 to 71 regular pages 3-11-56 to 2-5-59--total thirteen exercise book type account books eight bunches of loose sheets stitched together companytaining sheets as detailed below bunch number 1 companytaining sheets 5 bunch number 2 containing sheets 6 bunch number 3 companytaining sheets 4 bunch number 4 companytaining sheets 5 bunch number 5 companytaining sheets 4 bunch number 6 containing sheets 2 bunch number 7 companytaining sheets 2 bunch number 8 companytaining sheets 3 loose papers 25 sheets including small chits recovered from shriram bhawan nagpur and whereas i am of the opinion that the said documents are useful for and relevant to the proceedings under customs act 1962 act 52 of 1962 1 shri tilak raj the companylector of central excise having been empowered as companylector of customs under numberification number gsr 214 dated 1-2-1963 of the government of india in this behalf in exercise of the said powers hereby order that the aforesaid documents shall be seized. respondent number 3 made a second order of seizure dated september 11 1963 with regard to the same documents. respondent number 3 has explained that he had to make the second order of seizure dated september 11 1963 because he was at first under the impression that the documents were under the custody of respondent number 2 but later on he learnt that respondent number 2 had already made over the documents to the custody or sri krishan dev assistant collector of central excise nagpur. it is companytended by mr. pathak on behalf of the appellants that the order of search and seizure dated august 19 1963 was illegal because the excise authorities had numberpower to seize documents under rule 126 l 2 of the defence of india amendment rules 1963 which states 126l. power of entry search seizure to obtain information and to take samples.- 1 any person authorised by the central government by writing in this behalf may- a enter and search any premises number being a refinery or establishment referred to in subrule 1 vaults lockers or any other place whether above or below ground- b seize any gold in respect of which he suspects that any provision of this part has been or is being or is about to be companytra- vened along with the package companyering or receptacle if any in which such gold is found and thereafter take all measures necessary for their safe custody. it is companytended for the appellants that the rule only gives authority to seize any gold in respect of which there is suspicion of contravention of the gold companytrol rules along with the package companyering or receptacle but there is numberprovision in the rule for search or seizure of any documents. on behalf of the respondents the solicitor-general relied upon the provisions of rule 156 which is to the following effect powers to give effect to rules orders etc.- any authority officer or person who is empowered by or in pursuance of the defence of india ordinance 1962 or any of these rules to make any order or to exercise any other power may in addition to any other action prescribed by or under these rules take or cause to be taken such steps and use or cause to be used such force as may in the opinion of such authority officer or person be reasonably necessary for securing compliance with or for preventing or rectifying any companytravention of such order or for the effective exercise of such power. where in respect of any of the provisions of these rules there is no authority officer or person empowered to take action under sub-rule 1 the central or the state government may take or cause to be taken such steps and use or cause to be used such force as may in the opinion of that government be reasonably necessary for securing companypliance with or preventing or rectifying any breach of such provision. for the avoidance of doubt it is hereby declared that the power to take steps under sub-rule 1 or under sub-rule 2 includes the power to enter upon any land or other property whatsoever. it was submitted that the superintendent of customs and central excise was an officer empowered by the central government to exercise the power under rule 126 l 2 and under rule 156 the superintendent had the additional power to take or cause to be taken such steps as may be reasonably necessary for the effective exercise of such power. the argument was stressed that under rule 156 the superintendent had the power to seize docu- ments for the purpose of investigating whether the gold which was seized was gold in respect of which any provision of part xiia had been contravened. we do number think there is any justification for this argument. the power granted to the authority empowered under rule 156 is an ancillary or incidental power for making effective seizure of suspected gold. in other words the power granted under rule 156 is the power to take such action as may be necessary for seizing the gold and does number include the power of seizure of documents which is number an ancillary but an independent power. the view that we have taken is borne out by the seventh amendment of the defence of india rules made on june 24 1963. before the amendment rule 126 l read as follows 126l. power of entry search seizure to obtain information and to take samples.- any person authorised by the board by writing in this behalf may- a enter and search any refinery of which the refiner or the establishment of a dealer who is licensed under this part b seize any gold in respect of which he suspects that any provision of this part has been or is being or is about to be contravened along with the package companyering or receptacle if any in which such gold is found and thereafter take all measures necessary for their safe custody. any person authorised by the central government by writing in this behalf may- a enter and-search any premises number being a refinery or establishment referred to in sub-rule 1 vaults lockers or any other place whether above or below ground b seize any gold in respect of which he suspects that any provision of this part has been or is being or is about to be contravened along with the package companyering or receptacle if any in which such gold is found and thereafter take all measures necessary for their safe custody. after the seventh amendment the following clause was inserted after cl. b in sub-r. 1 c seize any books of account return or any other document relating to any gold in respect of which he suspects that any provision of this part has been or is being or is about to be companytravened and thereafter take all measures necessary for their safe custody. by the same amendment the following sub-rule was inserted after sub-rule 2 any officer authorised by the board by writing in this behalf may search any person if that officer has reason to believe that such person has secreted about his person- a any gold in respect of which such officer suspects that any provision of this part has been or is being or is about to be companytravened b any document relating to such gold. it is important to numberice that rule 126 l 2 has number been amended by the seventh amendment and there is numberprovision in this sub-rule for such a seizure of any document. we are therefore of the opinion that respondent number 1 had no authority under rule 126 l 2 of the defence of india rules to order respondent number 2 to seize and take possession of the documents in the premises of the appellant. the appellants will number however be entitled to the relief of rant of a writ because we are of the opinion that there is a valid order of seizure of the same documents on september 11 1963 by the companylector of customs under s. 110 3 of the customs act. section 1 1 0 of the customs act states 110. 1 if the proper officer has reason to believe that any goods are liable to confiscation under this act he may seize such goods provided that where it is number practicable to seize any such goods the proper officer may serve on the owner of the goods an order that he shall number remove part with or otherwise deal with the goods except with the previous permission of such officer. where any goods are seized under sub- section 1 and numbernumberice in respect thereof is given under clause a of section 124 within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized provided that the aforesaid period of six months may on sufficient cause being shown be extended by the companylector of customs for a period number exceeding six months. the proper officer may seize any documents or things which in his opinion will be useful for or relevant to any proceeding under this act. the person from whose custody any documents are seized under sub-section 3 shall be entitled to 1000 make companyies thereof or take extracts therefrom in the presence of an officer of customs. on this aspect of the case it was firstly submitted by the appellant that the companylector of customs was number a proper officer within the meaning of the act and so he had no authority to seize documents from the possession of the superintendent or the assistant companylector central excise. reference was made to s. 2 34 of the customs act which states 2. 34 proper officer in relation to any functions to be performed under this act means the officer of customs who is assigned those functions by the board or the companylector of customs on behalf of the respondents the solisitor-general relied upon s. 5 2 of the customs act which states that an officer of customs may exercise the powers and discharge the duties companyferred or unposed under this act on any other officer of customs who is subordiante to his.mr. pathak however submitted that s.5 2 has numberapplication to this case because there is a difference between the functionson the one hand and powers and duties reffered to in s.5 2 of the customs act on the other. we do number think it is necessary to go into this point because we are of the view that in any event the companylector of customs would be a proper officer in relation to the functions to be performed by the act because as a matter of principle the companylector of customs who had assigned the powers of a proper officer to the subordinate officer must himself be deemed to have the powers of a proper officer under s. 110 3 of the customs act. we accordingly reject the contention of mr. pathak on this point. it was next submitted on behalf of the appellant that on both the dates-september 6 1963 and september 11 1963-the documents were number in physical possession of respondent number 2 and there companyld number be a valid seizure of documents as contemplated by s. 110 3 of the customs act. it is the admitted position that when seizure orders were passed by the companylector of customs on e documents were number in nagpur or within the territorial of respondent number 3. but we do number accept the argument of the appellant that the power of seizure must necessarily involve in every case the act of physical possession of the person who had a right to seize the articles. it is true that the documents had been sent to delhi by respondent number 2 for a limited purpose and for a limited period. but though the documents were sent to 1001 delhi respondent number 2 was still in legal possession of the documents for he had the right to companytrol the use of the documents and to exclude persons who should or should number have access to the documents. the legal position is that at delhi the documents were in possession of a bailee for the limited purpose of examination and translation of the documents but the legal possession was still with respondent number 2. the law on this point has been companyrectly stated by mellish l.j. in ancona v. rogers 1 as follows there is numberdoubt that a bailor who has delivered goods to a bailee to keep them on account of the bailor may still treat the goods as being in his own possession and can maintain trespass against a wrongdoer who interferes with them. it was argued however that this was a mere legal or companystructive possession of the goods and that in the bills of sale act the word possession was used in a popular sense and meant actual or manual possession. we do number agree with this argument. it seems to us that goods which have been delivered to a bailee to keep for the bailor such as a gentlemans plate delivered to his banker or his furniture warehoused at the pantechnicon would in a popular sense as well as in a legal sense be said to be still in his possession. this passage was approved by lord porter in united states of america v. dollfus mieg et companypagnie s.a. and bank of england 1 and it was held in that case that where a bailor can at any moment demand the return of the object bailed he still has legal possession. it follows therefore in this case that the companylector by his order of seizure dated september 6 1963 or september 11 1963 companyld transfer the legal possession of the documents to himself. the legal effect of the order of de collector was the transfer of the legal possession of the documents from respondent number 2 or respondent number 1 to the collector. such a change of possession need number necessarily involve a physical transfer of possession if it was number possible at that stage but as a matter of law on and from the date of seizure the companylector exercised the full incidents of possession over the documents. the fact that the documents were retained at delhi for a specific purpose will number affect the legality of the order of seizure and was in law transfer of possession in respect of these documents from respondents number. 1 and 2 to respondent number 3. 1 1876 1 ex. d. 285 at p. 292. 2 1952 1 all. e.r. 572. 1 002 on behalf of the appellants mr. pathak referred to the decision of this companyrt in gian chand v. the state of punjab 1 . in that case the question debated was whether the presumption under s. 178a of the sea customs act 1878 would arise in respect of an article which was originally seized by the police and handed over to the authorities of the customs department and was actually with one of them when it was seized. in this companytext this companyrt observed at page 373 of the report a seizure under the authority of law does involve a deprivation of possession and number merely of custody and so n the police officer seized the goods the accused lost possession which vested in the police. when that possession is transferred by virtue of the provisions companytained in s. 180 to the customs authorities there is numberfresh seizure under the sea customs act. it would therefore follow that having regard to the cir- cumstances in which the gold came into the possession of the customs authorities the terms of s. 178a which requires a seizure under the act were number satisfied and consequently that provision cannumber be availed of to throw the burden of proving that the gold was number smuggled on the accused. the ratio of that case is of numberassistance to the appellants for the question at issue in that case was in regard to burden of proof under s. 178a of the sea customs act and whether the presumption under that section would arise in the special circumstances of the case. mr. pathak also referred to the decision of the queens bench in vinter hind 2 in which the respondent a butcher exposed for sale part of a company which had died of disease and sold the meat to a customer who took it home for food and some days afterwards was requested by the appellant an inspector of nuisances to hand it over to him and it was companydemned by a justice as unfit for the food of man. it was held by the queens bench in these circumstances that the meat was number so seized and companydemned as is prescribed by ss. 116 117 of the public health act. 1875 and therefore the respondent was number liable as the person to whom the same did belong at the time of the exposure for sale to a penalty under s. the decision of this case is of numberhelp to the appellants because the actual decision turned upon the language of ss. 116 and 117 of the public health act 1875 and the respondent was held number liable to the penalty 1 1962 supp.1 r 2 1882 10 q.b. 63. 1003 because he was number the person to whom the meat did belong at the time of exposure for sale. it was then companytended on behalf of the appellants that there is numbermaterial to show that the documents seized were relevant or useful to the proceeding under the customs act and in the absence of such material the seizure of the documents must be held to be illegal. we do number think there is any warrant for this argument. the orders of the collector dated september 6 1963 and september 11 1963 both state that the companylector was of opinion that the documents were useful for and relevant to the proceedings under the customs act 1962. respondent number 2 has also stated in para 3 of his return that information was received from a reliable source that the appellant had a companysiderable quantity of hoarded gold which had number been declared by him under rule 126 1 of the defence of india amendment rules 1963 and for this purpose a raid was made for search of gold and gold ornaments. respondent number 2 has further stated as follows during this search i also came across certain documents and records which indicated that the petitioner had acquired companysiderable quantity of gold which was far in excess of the quantity of gold declared by the petitioner and his family members in the declarations submitted by them under rule 126 1 of the defence of india amendment rules 1963. in addition i also found documents indicating that the petitioner had resorted to dealings companystituting breach of the customs. regulations and the regulations under the foreign exchange regulation act punishable under the sea customs act 1878 and or the customs act 1962. the documents numbere-books and files which i came across also indicated that the petitioner had resorted to under invoicing of export of mineral ores to the extent of millions of rupees large-scale purchase of gold to the tune of lakhs of rupees unauthorised sale of foreign exchange involving lakhs of dollars u.s. to parties of whom some are persons knumbern to be directly or indirectly involved in smuggling activities. we accordingly hold that there is sufficient material to support the information of the companylector of customs under s. 110 3 of the customs act that the documents would be useful or relevant to the proceedings under the act and the argument of mr. pathak on this aspect of the case must be rejected. 1004 for the reasons expressed we hold that the high companyrt was right in saying that the appellant had made out numbercase for grant of a writ. this appeal accordingly fails and must be dismissed with companyts. civil appeal number 677 of 1965 this appeal arises out of special civil application number 437 of 1963 relating to the search of the premises of the appellant durga prasad at tumsar and nagpur on the basis of an authorisation dated september 24 1963 issued by the assistant companylector of customs raipur to the superintendent of central excise at nagpur under s. 105 of the customs act which reads as follows shri h. r. gomes superintendent prev. h. qrs. central excise nagpur. whereas information has been laid before me of the suspected companymission of the offence under section 11 read with section 1 1 1 of the customs act 1962 52 of 1962 and it has been made to appear that the production of contraband goods and documents relating thereto are essential to the enquiry about to be made in the suspected offence. this is to authodse and require you to search for the said articles and documents in the shop office godowns residential premises companyveyance packages belonging to or on the person of shri durgaprasad saraf tumsar and if found to produce the same forthwith before the undersigned returning this authority letter with an endorsement certifying what you have done under it immediately upon its execution. given under my hand and the seal of this office this 24th day of september 1963. seal of the integrated divisional office central excise raipur. sd. n. sen collector customs central excise i.d.o. raipur m.p. 1005 it is companytended on behalf of the appellant that the authorisation is number legally valid since there is no averment by the assistant companylector that the documents were secreted. section 105 of the customs act states 105. 1 if the assistant companylector of customs or in any area adjoining the land frontier or the companyst of india an officer of customs specially empowered by name in this behalf by the board has reason to believe that any goods liable to companyfiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this act are secreted in any place he may authorise any officer of customs to search or may himself search for such goods docu- ments or things. the provisions of the companye of criminal procedure 1898 relating to searches shall so far as may be apply to searches under this section subject to the modification that sub- section 5 of section 165 of the said companye shall have effect as if for the word magistrate wherever it occurs the words collector of customs were substituted. according to the appellant the power of seizure under s. 105 of-the customs act cannumber be exercised unless the assistant collector had reason to believe that the documents were secreted. it was argued that the word secreted is used in s. 105 in the sense of being hidden or companycealed and unless the officer had reason to believe that any document was so concealed or hidden a search companyld number be made for such a document. we are unable to accept the submission of the appellant as companyrect. in our opinion the word secreted must be understood in the companytext in which the word is used in the section. in that companytext it means documents which are kept number in the numbermal or usual place with a view to conceal them or it may even mean documents or things which are likely to be secreted in other words documents or things which a person is likely to keep out of the way or to put in a place where the officer of law cannumber find it. it is in this sense that the word secreted must be understood as it is used in s. 105 of the customs act. in this connection reference was made by the solicitor-general to the affidavits of the superintendent of central excise dated october 28 1963. para 6 states that some of the documents were recovered from the living apartments and safe of the petitioner and also from the drawers 1006 of the tables and cabinets utilised by his sons and a search was made for documents which may have been secreted in the premises. it was further submitted on behalf of the appellant that the power of search under s. 105 of the customs act cannumber be exercised unless the authorisation specifies a document for which search is to be made. in other words it is companytended that the power of search under s. 105 of the customs act is number of general character. we do number accept this argument as companyrect. the object of grant of power under s. 105 is number search for a particular document but of documents or things which may be useful or necessary for proceedings either pending or companytemplated under the customs act. at that stage it is number possible for the officer to predict or even to knumber in advance what documents companyld be found in the search and which of them may be useful. or necessary for the proceedings. it is only after the search is made and documents found therein are scrutinised that their relevance or utility can be determined. to require therefore a specification or description of the documents in advance is to misapprehend the purpose for which the power is granted for effecting a search under s. 105 of the customs act. we are therefore of opinion that the power of search granted under s. 105 of the customs act is a power of general search.

test

1965_295.txt

civil appellate jurisdiction civil appeals number. 1639 to 1641 of 1968. appeal from the judgment and decree dated december 14 1967 of the punjab and haryana high companyrt in regular second appeals number. 357 359 and 418 of 1967 respectively and civil appeals number. 31 and 1279 of 1969. appeals from the judgments and orders dated march 22 1968 of the punjab and haryana high companyrt in civil writ number. 536 of 1966 and 836 of 1967 and civil appeals number 2227 of 1969. appeal by special leave from the order dated february 17 1969 of the punjab and haryana high companyrt in regular second appeal number 1624 of 1968. bishan narain and r. n. sachthey for the appellant in c.a. number. 1639 to 1641 of 1968 . c. mahajan and r. n. sachthey for the appellants in a. number 31 of 1969 . s. chawla and r. n. sachthey for the appellants in a. number 1279 of 1969 . c. chagla and r. n. sachthey for the appellants in a. number 2227 of 1969 . k. daphtary hardev singh k. l. mehta s. k. mehta k. nagaraia and m. qamaruddin for the respondent in c.a. number 1639 of 1968 . hardev singh k. l. mehta s. l. mehta k. r. nagaraja and qamaruddin for the respondents in c.a. number. 1640 and 1641 of 1968 . hardev singh for the respondents in c.a. number. 31 and 1279 of 1969 . k. mehta hardev singh k. l. mehta k. r. nagaraja and qamaruddin for the respondent in c.a. number 2227 of 1969 . the judgment of the companyrt was delivered by hedge j.-these appeals by certificate raise two companymon questions of law for decision viz. whether the government can by administrative instructions add to the companyditions of service relating to the promotion of a government servant prescribed under art. 309 of the companystitution and further whether such an addition requires the approval of the central government under s. 115 of the states re-organization act 1956. for deciding the two questions of law formulated earlier it would be sufficient if we refer to the facts of any one of the aforementioned cases. hence we shall refer to the facts in civil appeal number 1639 of 1968. shamsher jang bahadur the respondent in that appeal joined government service as a clerk in the erstwhile pepsu secretariat on january 3 1955 pepsu state became a part of the state of punjab on numberember 1 1956 under the provisions of the states re-organization act 1956. shamsher jang bahadur was provisionally promoted as an assistant on december 9 1959 in the punjab civil secretariat at chandigarh. he was reverted as a clerk on february 3 1960 on the ground that he failed to qualify the test prescribed under certain administrative instructions issued on june 21 1958. he filed a civil suit challenging his reversion. the suit was decreed by the trial companyrt. that decree was affirmed by the appellate companyrt. the high companyrt of punjab and haryana dismissed the second appeal filed by the state. somewhat similar are the facts in the other appeals. it was companyceded before us that the appellants at the relevant time were governed by the punjab civil secretariat state service class 111 rules 1952 to be hereinafter referred to as the rules in view of certain instructions issued by the central government under the provisions of the states re-organization act 1956. hence it is number necessary to refer to the pepsu secretariat service recruitment promotion punishment and seniority rules 1952. rule 6 of the rules regulates the appointment of assistants by promotion. the relevant portion of that rule reads 6 1 posts in the service shall be filled a b c d e f in the case of assistants by promotion of senior clerks or .lm15 by selection from among officials employed in departments of government other than the civil secretariat. 6 2 6 3 appointment to any post by the promotion of officials already in the service or by transfer of officials employed in government departments other than the civil secretariat shall be made strictly by selection and numberofficial shall have any claim to such appointment as of right. on june 21 1958 the government issued instructions to the effect that 25 per cent of the vacancies in the cadre of assistants in the punjab civil secretariat will be filled by appointment of suitable personnel from serving officials in the offices of the heads of departments in the state while the remaining 75 per cent will be filled by promotion from amongst the clerks in the punjab civil secretariat. clause b of that order provides for the purpose of appointment of officials from the offices of heads of departments as assistant in the punjab civil secretariat as also for promotion of clerks of the secretariat to the posts of assistants in the cadre a test-separately prescribed will be held by the punjab public service companymission. for officials belonging to the offices of the heads of departments this test will be a competitive one and for the secretariat clerks it will be a qualifying test. as at present this test will be companyducted simultaneously in accounts as also in numbering and drafting. the question as to what standard of accounts test it would be fair to expect of the examinees is being companysidered separately. it may be numbered that herein we are dealing only with those who were promoted from the cadre of clerks in the secretariat. the first question arising for decision is whether the government was companypetent to add by means of administrative instructions to the qualifications prescribed under the rules framed under art. 309. the high companyrt and the companyrts below have companye to the companyclusion that the government was incompetent to do so. this companyrt has ruled in sant ram sharma v. state of rajasthan and anr. 1 that while the government cannumber amend or supersede the statutory rules by administrative instructions if the rules are silent on any particular point the government can fill. up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed. hence we have to see whether the instructions with which we are companycerned so far as they relate to 1 1968 s.c.r. 111. the clerks in the secretariat amend or alter the companyditions of service prescribed by the rules framed under art. 309. undoubtedly the instructions issued by the government add to those qualifications. by adding to the qualifications already prescribed by the rules the government has really altered the existing companyditions of service. the instructions issued by the government undoubtedly affect the promotion of companycerned officials and therefore they relate to their companyditions of service. the government is number competent to alter the rules framed under art. 309 by means of administrative instructions. we are unable to agree with the companytention of the state that by issuing the instructions in question the government had merely filled up a gap in the rules. the rules can be implemented without any difficulty. we see numbergap in the rules. there is a further difficulty in the way of the government. the additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the companyditions of service of the government servants. as laid down by this companyrt in mohammad bhakar and ors. v. y. krishna reddy and ors. 1 any rule which affects the promotion of a person relates to his companyditions of service and therefore unless the same is approved by the central government in terms of proviso to sub-s. 7 of s. 115 of the states reorganization act 1956 it is invalid as it violates sub-s. 7 of s. 115 of the states re- organization act. admittedly the approval of the central government had number been obtained for issuing those instructions. but reliance was sought to be placed on the letter of the central government dated march 27 1957 wherein the central government accorded advance approval to the state governments regarding the change in the companyditions of service obtaining immediately before numberember 1 1956 in the matter of traveling allowance discipline companytrol classification appeal companyduct probation and departmental promotion.

test

1972_182.txt

original jurisdiction petition number 121 of 1958. petition under article 32 of the companystitution for enforcement of fundamental rights. b. pai and sardar bahadur for the petitioner. c. setalvad attorney-general for india b. sen and t. sen for the respondents. 1958. december 11. the judgment of the companyrt was delivered by gajendragadkar j.-the petitioner has been doing business as an exporter of companyr products to foreign companyntries for the last twenty years. on july 4 1958 he applied to respondent 2 the chairman companyr board ernakulam requesting that he should be registered as an established exporter. this application was accompanied by an income-tax clearance certificate and attested companyies of bills of lading. respondent 2 declined to register the petitioner on the ground that his application was defective inasmuch as the requisite certificate regarding his financial status bad number been produced and numberevidence had been given to show that he had exported the minimum quantity required 500 cwts. . the petitioner was told that unless he companyplied with the requirements asked for within seven days his application would be rejected without further numberice. the petitioner found that he companyld number companyply with the directions issued by respondent 2 and so it became impossible for the petitioner to get registration and licence applied for by him. that is why he filed the present petition under art. 32 of the constitution and prayed for the issue of a writ or order in the nature of mandamus to direct the second respondent to grant the petitioner registration and licence as applied for by him and to prohibit or restrain the said respondent from acting on or implementing the rules issued under the companyr industry act 1953 by issue of a writ of certiorari prohibition or such other writ or order appropriate to protect his rights. the petitioner also prayed that if found necessary the said rules should be declared to be ultra vires the powers of the central government and invalid being in violation of the fundamental rights guaranteed by arts. 14 and 19 of the constitution. the union of india has been impleaded as respondent 1 to the petition. before dealing with the points raised by the petition it would be necessary to refer briefly to the provisions of the companyr industry act 1953 45 of 1953 hereinafter called the act and the rules framed under it in 1958. this act was enacted by the parliament because it was thought expedient in the public interest that the union should take under its companytrol the companyr industry s. 2 . section 4 of the act provides for the establishment and companystitution of the coir board and s. 10 enumerates its functions and duties. under s. 10 1 it shall be the duty of the board to promote by such measures as it thinks fit the development under the control of the central government of the companyr industry. sub-section 2 enumerates the measures which the board may take with the object of developing the companyr industry without prejudice to the generality of the provisions of sub-s. 1 . amongst the measures thus enumerated sub-s. 2 b refers to the regulation under the supervision of the central government of the production of husks companyr yarn and companyr products by registering companyr spindles and looms for manufacturing companyr products as also manufacturers of companyr products licensing exporters of companyr yarn and companyr products and taking such other appropriate steps as may be prescribed. sub-section 2 g refers to the promotion of co-operative organisation among producers of husks companyr fibre and companyr yarn and manufacturers of companyr products and sub-s. 2 1 refers to the licensing of retting places and warehouses and otherwise regulating the stocking and sale of coir fibre companyr yarn and companyr products both for internal market and for exports. section 26 1 companyfers on the central government power to make rules for carrying out the purposes of the act subject to the companydition of previous publication. sub-section 2 enumerates the matters in res- pect of which rules may be made in particular and without prejudice to the generality of the power conferred by sub-s. 1 . sub- section 2 k refers inter alia to the registration of manufacturers of companyr products and the companyditions for such registration and the grant or issue of licences under the act and sub-s. 2 1 deals with the form of applications for registration and licences under the act and the fee if any to be paid in respect of any such applications. under the powers companyferred by s. 26 the central government framed rules in 1958. for the purposes of the present petition it would be relevant to refer to rr. 17 to 22. rule 17 deals with registration and licensing of exports and it provides that numberperson shall after the companying into force of the rule export companyr fibre companyr yarn or companyr products unless he has been registered as an exporter and has obtained an export licence under these rules. the proviso deals with exemptions with which we are number concerned. rule 18 lays down that any person who has in any of the three years immediately preceding the companymencement of the rules exported number less than twenty-five tons of companyr yarn or companyr products other than companyr rope or exported any quantity of companyr fibre or companyr rope may be registered an exporter of companyr yarn companyr products other than companyr rope or coir fibre or companyr rope as the case may be. rule 19 provides for the registration of persons other than those covered by r. 18 and it lays down inter alia that such persons may be registered as exporters of companyr yarn if during the period of twelve months immediately preceding the date of application a minimum quantity of twenty-five tons of companyr yarn had been rehanked or baled in a factory owned or otherwise possessed by the applicant and registered under the indian factories act 1948 or if the applicant has had a total purchase turnumberer of one hundred tons of companyr yarn. the proviso to this rule authorises the chairman by numberification to exempt from the operation of this rule any co-operative society the members of which are owners of industrial establishments or any central companyoperative marketing society. rules 20 and 22 prescribe the mode of making an application for registration as an exporter and for licence respectively while r. 21 provides for the cancellation of registration. the present petition does number challenge the validity of any of the provisions of the act. it however seeks to challenge the vires of rr. 18 19 20 1 a 21 and 22 a . there is numberdoubt that companyr and companyr products play an important role in our national econumbery. they are commodities which earn foreign exchange the total value of our exports in these companymodities being of the order of rupees ten crores per year. it was found that several malpractices had crept in the export trade of these commodities such as number-fulfilment of companytracts supplying goods of inferior qualities and cut-throat companypetition and these in turn companysiderably -affected the volume of the trade. that is why parliament thought it necessary that the union should take under its companytrol the companyr industry in order to regulate its export trade. it is with the object of developing the companyr industry that the companyr board has been established and the registration and licensing of exporters has been introduced. the petitioner does number dispute this position and makes numbergrievance or companyplaint against the relevant provisions in the act. it is however urged that the relevant rules which prescribe the quantitative test for the registration of established exporters are ultra vires because the introduction of the said test is inconsistent with the provisions of the act. in this companynection mr. pai for the petitioner sought to rely on the report submitted by the ad-hoc companymittee for external marketing which the companyr board had appointed on august 20 1954. his grievance is that the report of the said companymittee does number recommend the adoption of the quantitative test but seems to suggest that a qualitative test would be more appropriate and that according to mr. pai also indicates that the quantitative test had been improperly prescribed by the rules. we are number impressed by these arguments. it is clear that there is numberprovision in the act which excludes or prohibits the application of the quantitative test in making rules for registration of exporters or for issuing licences for export trade. in fact the act has deliberately left it to the rule-making authority to frame rules which it may regard as appropriate for regulating the trade and so it would be impossible to accept the argument that the rule-making authority was bound to prescribe the qualitative rather than the quantitative test. besides it does number appear that the report of the companymittee on which mr. pai relied definitely indicated its partiality for the adoption of the qualitative test. indeed appx. xi to the said report would suggest that the companymittee in fact was number averse to the adoption of a quantitative test but even if the companymittee had expressly recommended the adoption of a qualitative number a quantitative test it would be idle to suggest that the companyr board was bound to accept the said recommendation or that the central government was number competent to make rules companytrary to the recommendations of the companymittee. the validity of the rules can be successfully challenged if it is shown that they are inconsistent with the provisions of the act or that they have been made in excess of the powers companyferred on the rule-making authority by s. 26 of the act. in our opinion numbersuch infirmity has been established in respect of the impugned rules. it is then companytended that the relevant rules would ultimately tend to establish a monumberoly in the export trade of companyr companymodities and would thereby extinguish the trade or business of small dealers like the petitioner. it is also companytended that the application of the quantitative-test discriminates between persons carrying on business on a large scale and those who carry on business on a small scale. that is how arts. 19 and 14 of the companystitution are invoked and the validity of the relevant rules is challenged on the ground that they violate the fundamental rights of the petitioner under the said articles. we think there is numbersubstance in this companytention. if it is companyceded that the regulation of the companyr industry is in the public interest then it would be difficult to entertain the argument that the regulation or companytrol must be introduced only on the basis of a qualitative test. it may well be that there are several difficulties in introducing and effectively enforcing the qualitative test. it is well-knumbern that granting permits or licences to export or import dealers on the basis of a quantitative test is number unknumbern in regard to export and import of essential companymodities. it would obviously be for the rule-making authority to decide which test would meet the requirements of public interest and what method would be most expedient in companytrolling the industry for the national good. beside even the adoption of a qualitative test may tend to extinguish the trade of those who do number satisfy the said test but such a result cannumber obviously be treated as companytravening the fundamental rights under art. 19. companytrol and regulation of any trade though reasonable within the meaning of art. 19 sub-art. 6 may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced but once it is companyceded that regulation of the trade and its companytrol are justified in the public interest it would number be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under art. 19 1 g and challenge the validity of the regulation or rule in question. in our opinion therefore the challenge to the validity of the rules on the ground of art. 19 must fail. the challenge to the validity of the said rules on the ground of art. 14 must also fail because the classification of traders made by rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other. it is also clear that the differentia has a rational relation to the object sought to be achieved by the act. as we have already pointed out the export trade in companyr company- modities disclosed the existence of many malpractices which number only affected the volume of trade but also the reputation of indian traders and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to number-fulfilment of companytracts or to supply of inferior companymodities. in order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted. in this companynection it may also be relevant to point out that -the rules seem to companytemplate the granting of exemption from the operation of some of the relevant tests to companyoperative societies and that shows that the intention of the legislature is to encourage small traders to form companyoperative societies and carry on export trade on behalf of such societies and so it would number be possible to accept the argument that the impugned rules would lead to a monumberoly in the trade. it is thus clear that the main object which the rules propose to achieve is to remove the anumberalies and malpractices prevailing in the export trade of companyr companymodities and to put the said trade on a firm and enduring basis in the interest of national econumbery.

test

1958_94.txt

civil appellate jurisdiction civil appeal number 1524 of 1977. appeal by special leave from the judgment and order dated 21-9-1976 of the allahabad high companyrt in s.a.number. 2666 and 37/76. p. gupta and pramod swaroop for the appellants. yogeshwar prasad and mrs. rani chkabra for the respondents 5 and 6. r. lalit and manumber swarup miss lalit kohli for the respondent university. the judgment of the companyrt was delivered by krishna iyer j.-the companye companytroversy in this appeal by special leave rages round the legality of the selection of readers by the allahabad university. the fortunes of the litigation pending for seven years have been fluctuating from companyrt to companyrt. the fine line of distinction between internal autonumbery for educational bodies and insulation of their operations from judicial interference on the one hand and the companystitutional obligation of the companyrt to examine the legality of academic actions and companyrect clear injustices on the other is jurisprudentially real and the present appeal illustrates the demarcation between the two positions. while legal shibboleths like hand-off universities and meticulous forensic invigilation of educational organs may both be wrong a balanced approach of leaving universities in their internal functioning well alone to a large extent but striking at illegalities and injustices if companymitted by however high an authority educational or other will resolve the problem raised by companynsel before us in this appeal from a judgment of the division bench of the high court. once we recognize the basic yet simple proposition that numberislands of insubordination to the rule of law exist in our republic and that discretion to disobey the mandate of the law does number belong even to university organs or other authorities the retreat of the companyrt at the sight of an academic body as has happened here cannumber be approved. on the facts and features of this case such a balanced exercise of jurisdiction will if we may anticipate our ultimate conclusion result in the reversal of the appellate judgment and the restoration in substantial measure of the learned single judges judgment quashing the selections made by the university bodies for the posts of readers in english way back in 1973. a perception in perspective of the facts which are brief and the law which is clear persuades us to narrate the circumstances which have led a number of lecturers of the allahabad university to fighting forensic battles over the selection of some as readers in english by the selection committee and their opportunity by the executive companyncil nearly a decade ago six posts of readers in the english department of the university fell vacant and applications were invited by advertisement. the petitioners and respondents 5 to 10 among others were applicants. these parties were all serving as lecturers in the university at that time. a selection companymittee was companystituted as contemplated by the statutes and ordinances harmed under the allahabad university act 1921 for short hereinafter called the act. section 29 of the act stipulates that teachers of the university shall be appointed by the executive companyncil on the recommendations of the selection committee. there are statutory provisions regulating the functions of the selection companymittee section 32 2 f of the act. provides for the issuance of ordinances prescribing qualifications for appointment of teachers. ordinance 912 lays down the qualifications for teachers in the various faculties. we are companycerned with ordinance 9 with special reference to the prescription of qualifications for readers and it runs thus the following qualifications are prescribed for the appointment of teachers in the faculties of arts science companymerce and law for readers i first or high second class masters degree in the subject companycerned and good academic record. established reputation for sound scholarship and be companypetent to teach upto masters degree and guide research a doctors degree or equivalent published work. at least 5 years teaching experience of the subject companycerned in post-graduate classes in a university recognized by law or research experience in a research institute recognized by the. university or the state or the central government. provided that the selection companymittee may relax the qualifications companytained in clause iii for the post of readers in the case of candidates whose total length of service as tea cheers in this university is number less than the period required to teach the maximum of the lecturers grade and who shall have established a reputation as teachers. provided further that in the case of women- teachers of this i.e. allahabad university in place of qualification number iv requiring 5 years teaching experience in post graduate classes a minimum of 5 years teaching experience of the subject in the graduate classes in this university may also be companysidered adequate for the post of readers. the statutory exercise of choosing the best among the applicants in companyformity with the minimum qualifications is done by the selection companymittee which recommends to the executive companyncil its panel. while there is numberspecific legislative provision regarding the procedure to be adopted by the selection companymittee there is numberdoubt that arbitrariness is anathema violation of natural justice vitiates and subject to this self-created rules flexible and pragmatic fair and functionally viable may well be fashioned by the selection companymittee. in this case the committee chose to interview the candidates who were other wise eligible for companysideration. 13 applicants turned up for inter view. but respondent number9 dr. bhattacharya and petitioner number 2 skand gupta apparently resented the viva voce test as unauthorized and did number care to appear for the interview. how ever dr. bhattacharya r. 9 on being persuaded did later turn up was interviewed and eventually included in the select list. the second petitioner did number enjoy the benefit of a second persuasion to present himself for interviews did number appear before the selection companymittee and missed the bus. the companymittee which companysisted of academic experts prepared a panel and forwarded it to the executive companyncil. as is inevitable in situations of over supply many are called but few are chosen and respondents 5 to 10 dr. mrs. hem lata joshi r-5 shri h. s saxena r-6 dr. r. r. dutt r-7 shri i. n. agarwal r-8 dr. a.n.bhattacharyya r-9and dr. l.m. upadhayaya r-10 were lucky to be chosen while the petitioners were luckless and lost. petitioner number 2 represented against the propriety of the selection to the executive companyncil but the latter overruled the objection and accepted the recommendation. respondents 5 to 10 were thus appointed readers. the petitioners thereupon moved the chancellor under s.42 of the act and urged in their petition that the selection was illegal but were disappointed because the chancellor by this order of numberember 22 1973 upheld the selection and the appointments. the last refuge of those with lost causes is the writ jurisdiction of the high companyrt. the petitioners invoked art. 226 of the companystitution and impugned the legality of the selection process and the appointments on various grounds. the learned single judge companysidered the merits of the companytentions and companycluded that the selections and the companysequent appointments were bad in law except in regard to respondents 7 and 10 and directed the university in january 1976 to hold fresh selections . for filling the vacancies of long years ago. inevitably the vanquished respondents rushed to the appellate bench of the high companyrt where success greeted them for the appeals were allowed in reversal of the single judges reasoning and the writ petition was dismissed in entirety. the final sanctuary of those who f. fancy that they are victims of judicial injustice of other forms of iniquity is the supreme companyrt in its misleadingly immense and self defeatingly multiform jurisdiction under art. 136 the appellants are here hopefully invoking our power to heal their alleged in jury. with this backdrop it will be easy to appreciate the few submissions urged by the appellants in substantiation of their case that although the selection companymittee was legally constituted the process of selection and the criteria for selection were illegal if the selecting were invalid dated by any lethal vice the companyncils action in accepting the commendees cannumber survive. number can the chancellors dismissal of the objections of the appellants lend life to what otherwise is number est. thus the crucial issue is whether the grounds of attack levelled against the selection have substance. a few basic facts must be remembered before we discuss the merits. all the parties with whom we are companycerned as candidates have acquired their masters degree from the allahabad university. in tune with the hierarchical ethos of indian society which does number spare the academic there is a pyramidal structure with lecturers at the bottom readers above them and professors at the top speaking simplistically. our companycern in this appeal is with readers and the eligibility qualifications mentioned in ordinance 9 are the minimum number the maximum. we may straight get into the meat of the matter the substantial company tension urged by the appellant with success before the single judge and failure before the division bench is that the companytesting respondents are number even qualified for companysideration because they do number have a first class or a high second class in the masters degree. it is companymon ground that numbere of them has a first class. it is undisputed that the allahabad university awards first class to those who obtain 60 and above and second class to those who secure anything between 48 to 59 . for the numberce we are number companycerned with the other qualifications itemized in ordinance 9. the marks obtained by the appellants show that they are recipients of first class or high second class. the companytroversy is number about their eligibility but that of the companytesting respondents. dr. mrs. joshi r. s has secured 52.2 marks shri saxena r. 6 has scraped through with 49 .3 marks dr. dutt r. 7 has however obtained a first class while shri agarwal r.8 is slightly below the middle line in the second class range having got only 53 .8 marks dr. bhattacharya r9. has fared a little better with 54 .5 marks. dr. upadhyaya r. 10 also has a better performance record in the masters degree examination since he has 55.1 marks to his credit. from these figures it is obvious that dr. dutt r.7 has the distition of being the holder of a first class. it is beyond ones companyprehension how his selection can be challenged on the score of ineligibility. indeed the appellants have accepted the findings of the learned single judge who has disallowed the writ petition vis-a-vis r. 7 and r. 10. we agree. even in regard to the companyclusion arrived at so far as r. 10 dr. upadhyaya is companycerned who has secured marks above the middle line in the range between 48 and 59 we are number disposed to disagree with the single judge. thus the appointments of. 7 and r.10 do number call for any interference. the rest will right number be exposed to the actinic light of legal scrutiny. we may dispel two mystiques before we debate the real issued. did the selection companymittee act illegally in resorting to the interview process to pick out the best ? we think number. any administrative or quasi judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic flexible and functionally viable processes of transacting business subject of companyrse to the basics of natural justice fair play in action reasonableness in companylecting decisional materials avoidance of arbitrariness and extraneous considerations and otherwise keeping with in the leading strings of the law. we find numberflaw in the methodology of interviews. certainly cases arise where the are of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote companytrol tactics masked as viva voce tests. this if allowed is surely a sabotage of the purity of proceedings a subterfuge whereby legal means to reach illegal ends is achieved. so it is that companyrts insist as the learned single judge has in this very case suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. if the companyrt is skeptical the record of the selection proceedings including the numberes regarding the interviews may have to be made available. interviews as such are number bad but polluting it to attain illegitimate ends is bad. dr. martin luther king jr. was right when be wrote. so i have tried to make it clear that it is wrong to use immoral means to attain moral ends. but number i must affirm that it is just as wrong or even more to use moral means to preserve immoral ends. the second obscurantism we must remove is the blind veneration of marks at examination as the main measure of merit. social scientists and educational avant garde may find pitfalls in our system of education and companydemn the unscientific aspects of marks as the measure of merit things as they number stand. but however imperfect and obtuse the current system and however urgent the modernization of our companyrses culminating in examinations may be the fact remains that f he companyrt has to go by what is extent and cannumber explore on its own or ignumbere the measure of merit adopted by universities. judges must number rush in where even educationists fear to tread. so we see numberpurpose in belittling the criterion of marks and class the allahahad university has laid down although to swear religiously by class and grade may be exaggerated reverence and false scales if strictly scrutinized by progressive criteria. we have stated earlier that the prescription of first class or high second class is part of the ordinance as a qualification for a readers post. is this companydition mandatory or directory ? the high companyrt at the two tiers has taken companytrary views. but we are inclined to hold that a high second class is a mandatory minimum. a glance at the relevant portion of ordinance 9 reveals that wherever relaxation of qualifications is intended the ordinance specifically spells it out and by necessary implication where it has number said so the possession of such qualification is imperative. we must remember that a reader is but next to a professor and holds high responsibility in giving academic guidance to post-graduate students. he has to be a creative scholar himself capable of stimulating in his students a spirit of enquiry and challenge intellectual ferment and thirst for research. if the teacher is innumberent of academic excellence the student in turn will be passive mechanical negative and memorizing where he should be innumberative imaginative and inventive. the inference is irresistible that a reader who guides the students and raises his faculties into creative heights is one who himself has had attainments to his credit. putting aside for a moment the value of examinations and marks as indicators of the students potential we must agree that the ordinance has a purpose when it prescribes atleast a high second class for a readers post. it is obligatory number we companye to close grips with the principal point- debated before us. when is a second class high going by marks? for any layman the meaning is clear. for any purpose- oriented interpretation the decoding is simple. high is the antithesis of low and a high second class is therefore a contrast to a low second class. when the range of second class marks is wide of the candidate who gets that class with marks within the lower half bracket you cannumber say he gets a high second class. if he manages to get 48 marks he barely gets a second class-number a high second class. and commonsense which is number an enemy of companyrt sense points clearly to the meaning of high second class as one where the marks fall a little short of first class marks and he narrowly misses first class. in the companytext of ordinance 9 and its purpose and the companylocating of words used viz. first class or a high second class the interpretation will misfire if we disregard the intent and effect of the adjective high and indifferently read it to mean merely the minimum marks needed to bring the candidate within the second class. high is high and a superior second class denumberes marks some where near first class marks. assuming we relax dilute and liberalize the rigour clearly imported by the draftsman by using the expression high second class still it is impermissible to render the word high nugatory or make by companystruction that intensive adjective redundant. number are we impressed with the strange submission that the university has all these years treated a high second class to mean a male . second class and therefore english has lost its potency in the allahabad university and high includes low. such bathetic semantics must be rejected sucre companytinuing companymission cf wrong does number right it. the utmost we may reiuctantly accept is the construction that the learned single judge has adopted. draw a line at mid-point and marks above and below that line will be high and low second class respectively. it was urged that marks for the second-class grade vary from university to university and start sometimes with 40 and so even 48 must be regarded as high second class for allahabad university. here we are companycerned only with holders of second class from the allahabad university and so the companyplication of other universities does number rise. even otherwise will reference to and particular university the marks for second class may be from x to y and high with reference to that university will be the superior half between x and y. lexically logically legally teleologically we find the companyclusion the same. we regretfully but respectfully disagree with the division bench and uphold the sense of high second class attributed by the learned single judge. the mid line takes us to 54 and although it is unpalatable to be mechanical and mathematical we have to hold that those who have number secured above 54 marks cannumber claim to have obtained a high second class and are ineligible. in the instant case dr. mrs. joshi shri saxena and shri agarwal do number fill the bill their marks being below 54 in the masters degree examination. we have earlier held that the power to relax as the ordinance number runs in so far as high second class is concerned does number exist. inevitably the appointment of the 3 respondents violate the ordinance and are therefore illegal. it is true as companynsel for the respondent urged that the selection companymittee is an expert body. but their expertise is number in law but in other branches of learning and the final interpretation of an ordinance is a legal skill outside the academic orbit. rulings of this companyrt were cited before us to hammer home the point that the companyrt should number substitute its judgment for that of academicians when the dispute relates to educational affairs. while there is numberabsolute ban it is a rule of prudence that companyrts should hesitate to dislodge decisions of academic bodies. but university organs for that matter any authority in our system is bound by the rule of law and cannumber be a law unto itself if the chancellor or any other authority lesser in level decides an academic matter or an educational question the court keeps its hands off but where a provision of law has to be read and understood it is number fair to keep the companyrt out. in govinda raos case 1 gajendragadkar j as he they was struck the right numbere what the high companyrt should have companysidered is whether file appointment made by the chancellor had companytravened any statutory or finding rule or ordinance and in doing so the high companyrt should have shown due regard to the opinions expressed by the board and its recommendations on which the chancellor has acted. emphasis added the later decisions cited before us broadly companyform to the rule of caution sounded in govinda rao. but to respect an authority is number to worship it unquestioningly since the bhakti cult is inept in the critical field of law. in short while dealing with legal affairs which have an impact on academic bodies the views of educational experts are entitled to great companysideration but number to exclusive wisdom. moreover the present case is so simple that profound doctrines about academic autonumbery have numberplace here. a strange submission was mildly made that the executive council has also the power to make ordinances and so by accepting a low second class has equal to a high second class in the case of the three respondents the companyncil must be deemed to have amended the ordinance and implicitly re- written it to delete the adjective high before second class. this argument means that an illegal act must be deemed to be legal by reading a legislative function into an executive action. were this dubious doctrine applied to governmental affairs and companyfusion between executive and legislative functions juris prudentially sanctioned the consequences companyld well be disastrous to the basics of our democracy we mention this facet of the argument number only to reject it but to emphasize that small gain in some case should number justify the urging of propositions which are subversive of our companystitution be that as it may we are satisfied that respondents 5 6 and 8 do number possess a high second class in their masters degree. the second companydition successfully urged before the single judge of the high companyrt relates to dr. bhattacharya r. 9 . the point is that r. 9 and petitioner number 2 for selection the second petitioner lost his chance of being considered because he did number appear for the interview and dr. bhattacharya averted that fate because he was sent for a second time. the equivocal version of dr. bhattacharya has number been accepted by the learned single judge and we are unhappy that an academic has been put to the necessity of this dubiety which suggests that taking liberties with truth for getting a temporary advantage is a tendency which does number spare highly educated and gifted persons. in this connection even the terminumberogical inexactitude indulged in by dr. hem lata joshi r. 5 is number companyplimentary when she says that in her application she gave 54 marks as against the actual figure of 52.2 and when challenged she excused herself by saying that her memory working in a hurry let her down. we are satisfied that if the selection companymittee had chosen to give an opportunity to the 2nd petitioner even as they did to r. 9 he might well have turned up and having regard to his high marks might also have stood a good chance of being selected. the criticism is number that the selection companymittees action was mala-fide or biassed but that there has been unequal treatment between equals. for this reason the selection of r. 9 deserves to be struck down as violative of art. 14. other minumber points which have been urged and companyntered do number deserve serious companysideration and we decline to deal with them. the companyclusion we reach is that the selection and appointments of respondents 7 and 10 are good but the selection and appointment of respondents 5 6 8 and 9 are bad in law. the tragic sequel cannumber be dismissed as numbere of our concern because the companyrt by its process must as far as possible act companystructively minimising the injury and maximising the benefit. indifference to companysequences upon institutions and individuals has an imperial flavour and we wish to make it clear that the fact that since 1973 the respondents 5 6 8 and 9 have been functioning as readers without blemish is a factor which distresses us when we demolish their appointments. they have gained experience of several years in the readers post. they are otherwise well qualified on the academic side. the short-fall in the matter of a high second class while some of them have been doctorates should number have such disastrous companysequences as to throw out the appointees 7 years after. we think that these special circumstances may well justify the appropriate authority in the university resorting to alternatives which may mitigate their misfortune. we have been informed by counsel mr. manumber swarup that the university is inclined to take an accommodative attitude to mitigate the hardship that may flow from the adjudication. of companyrse they are free to take such steps as they deem just and necessary.

test

1980_134.txt

original jurisdiction petition number 351 of 1954. petition under article 32 of the companystitution for the enforcement of fundamental rights. s. bindra udhai bhan choudhury and gopal singh for the petitioners. l. pandhi and k. l. mehta for the intervener. 1957. march 29. the judgment of the companyrt was delivered by jagannadhadas j.-this is an application under art. 32 of the constitution by the petitioners amar singh and four others in the following circumstances. all these five are displaced persons who owned land in the number-suburban village of chak. number 159-rb tahsil jaranwala district lyallpur in pakistan. they were also companysharers in a joint khata owned by some evacuees in village sultanwind a suburb of amritsar in east punjab. on their displacement they were in the first instance temporarily allotted agricultural land in sultanwind. having regard to their original position in the village they were. allotted in the year 1949 a total area of 38 standard acres and 13 units of agricultural land. therein. this allotment had to be disturbed under the following circumstances. the director-general of relief and rehabilitation additional custodian directed by an order dated january 7 1950 that out of the 1263 standard acres and 1 3/4 units of suburban land of amritsar 142 standard acres and 5 units were to be allotted to allottees of provincial gardens. this necessitated readjustment of allotments of the suburban land of sultanwind amongst the various groups who had quasi-permanent allotment therein. as a result of this readjustment which had to be carried out according to certain rules and instructions the allotment of these five petitioners as also of some others was proposed for cancellation by the order of the deputy custodian amritsar dated july 31 1951. this proposal was approved by the custodian financial companymissioner relief and rehabilitation on february 6 1952 and the allotment was cancelled. the proposal and the order of cancellation are said to have been passed without numberice to the petitioners. being aggrieved thereby they moved the custodian-general of evacuee property for revision thereof under s. 27 of the administration of evacuee property act 1950 xxxi of 1950 . this was dealt with by the deputy custodian-general who dismissed the same by a fairly elaborate order dated may 1 1954 after hearing the parties. the petitioners have companye up to this companyrt by this application under art. 32 of the companystitution. the case of the petitioners is that the allotment to them was on quasi-permanent basis and that therefore they have acquired certain rights in the lands which companystitute property. they urge that the order of the custodian cancelling the allotment and that of the deputy custodian- general affirming the same are in violation of their fundamental rights to property under arts. 19 1 f 31 1 and 31 2 of the companystitution. they accordingly contend that they are entitled to have these orders quashed and their rights to property declared and protected. that the petitioners are allottees of agricultural land on the basis of what has companye to be knumbern as quasi-permanent allotment is number disputed. it is also number disputed that cancellation thereof was under the purported exercise of powers vested in the custodian under certain provisions of the administration of evacuee property act 1950 xxxi of 1950 and the rules framed thereunder taken with some executive instructions. it may be mentioned that the term quasi-permanent allotment appears to be a term which has come into vogue in later statutory rules and has at numbertime been specifically defined though it appears to be number fairly well-understood. the two substantial questions that arise therefore for companysideration are 1 whether the rights of a quasi-permanent allottee companystitute property within the meaning of the articles above referred to and 2 whether the orders of the custodian and deputy custodian-general cancelling the quasi-permanent allotment amount to violation of fundamental rights companytemplated by the above articles. both these questions require a review of the evacuee property law in so far as it relates to the allotment of agricultural lands of the evacuees to displaced land-holders and an appreciation of the background of the circumstances that necessitated it. the declaration of independence and the partition of india into pakistan and india on august 15 1947 was accompanied by mass migrations of number-muslims from west punjab to east punjab and of muslims from east punjab to west punjab. these mass migrations were on a stupendous scale. about five million persons are said to have moved from each side to the other. this was done in a state of panic generated by companymunal riots. migrants from west punjab reached east punjab almost destitute. this unprecedented situation brought in its train gigantic problems of administration relating to rehabilitation resettlement of these persons. one of such problems was that relating to agricultural immovable proerty left on either side by the migrants. for purposes of companyvenience persons who crossed over from east punjab to west punjab are referred to as evacuees and persons who came over from west punjab to east punjab are referred to as displaced -persons. the displaced persons are said to have left in pakistan lands of the extent of about 67 lakh acres. the evacuees seem to have left in east punjab and pepsu lands of the extent of about 47 lakh acres. this meant a deficit of over 20 lakh acres for resettlement. it would appear that in the earlier stages there were attempts to settle the question by way of mutual exchanges either individually or at the governmental level and by means of inter-dominion companyferences between india and pakistan. but for one reason or other these attempts appear to have failed. the various steps and administrative measures taken to settle the displaced agricultural population who came over from west punjab on the hurriedly abandoned lands of the evacuees from east punjab are to be found described in the land resettlement manual by shri tarlok singh who was the director-general of relief and rehabilitation hereinafter referred to as the resettlement manual . in dunichand hakim v. deputy companymissioner deputy custodian evacuee property karnal 1 this book has been referred to by this companyrt as having the stamp of authority. it can be usefully referred to number 1 1954 s.c.r. 578. necessarily as an authority for every statement of fact or law companytained therein but as a guide to appreciate the background of the problems which the administration had to face in that unprecedented situation how the administration attempted to solve the same what were the rules and practice which the administration numbermally followed and considered binding on itself and what ideas inspired the course of legislation in this behalf. it appears therefrom that within about a month after the partition of india the government had to take an emergency decision to allot evacuee lands to groups of displaced persons on temporary basis. but this was found number to satisfy the displaced landholders. there was insistent pressure from them for such allotment as would enable them to settle on the lands of the evacuees on a permanent basis. this led to the abandonment of the policy of temporary allotments and the introduction of a system of allotment which came to be knumbern as quasi-permanent allotment. this policy was annumbernced by the government of east punjab in its press companymunique dated february 7 1948 which is reproduced at pages 28 and 29 of the resettlement manual. the following extract therefrom is instructive the east punjab government propose to replace the present system of temporary allotments of evacuee lands by a new system of allotments which will take account of the holdings of evacuees in west punjab. the new allotments will number confer rights of ownership or permanent occupancy but the possession of allottees will be maintained. claims of allottees will be dealt with in accordance with decisions reached eventually regarding the treatment of evacuee property. in the new scheme of allotments land will be allotted only to those who in west punjab were owners occupancy tenants under the punjab tenancy act and tenants under the colonization of government lands act and to certain other classes of grantees and holders of land in west punjab to be specified by government. it is proposed to give to small holders allotments of equivalent areas while in the case of larger holders there will be graded cuts. the definition of the small holders and the details of the graded cuts will be determined when detailed information regarding the available areas in east punjab and the east punjab states the areas held by the population to be settled in east punjab and the east punjab states and other relevant information becomes available. it is intended to companyplete the new system of allotments in east punjab and the east punjab states number later than the 31st may 1948. government are however anxious to introduce the new scheme as early as may be feasible and steps to this end will be taken at once. arrangements for companylecting companyplete information regarding the land available for allotment in east punjab and the east punjab states and the land abandoned by individual evacuees will be taken in hand without delay and it is hoped also to make arrangements on a reciprocal basis to secure infor- mation from records of rights in west punjab. to ensure accurate information an ordinance will shortly be promulgated prescribing punishment for false information regarding claims to land and action by way of forfeiture and otherwise in respect of allotments taken on false information. claims to land will be invited on a form to be prescribed by government. until the new system of allotments can be introduced the present system of allotments will companytinue and allotments made to the present holders will be maintained subject to a complete scrutiny of existing allotments cancellation of unauthorised and excessive allotments dispossession from illicit occupation and such other adjustments as may be necessary including adjustments in the unit of allotment decided upon by government. to facilitate the process of resettling the displaced persons on evacuated land on this new basis of allotment various steps became necessary. they are roughly the following. registration and verification of land claims. assessment and valuation of such claims classification of the villages and of lands of evacuees available for allotment. allocation of the claims to various areas with reference to such classification. allotment of lands to individuals with reference to the valuation of their claims guided by various companysiderations priorities and preferences and so forth administratively determined. the basic idea which inspired and regulated these measures was that the displaced landholder is to be allotted subject to graded cuts such lands out of the evacuee agricultural land which in its extent quality and other relevant features bear some reasonable relation and companyrespondence to the lands left by him in west punjab. all these steps involved very elaborate administrative measures as indicated above. we are companycerned in this companytext to trace the legislation which brought about these steps and to examine whether and to what extent such legislation recognised property rights in the displaced land-holders. but before tracing the legislative measures which brought about the quasi-permanent allotments of evacuee lands in favour of displaced land-holders from west punjab it will be convenient to have a brief survey of the present law in its application to administration of evacuee property of all kinds in general with the history of such of the provisions therein as are relevant for our purpose and then to companysider the relevant legislative measures taken specifically with reference to agricultural land. the earliest legislative measure in this behalf is the east punjab evacuees administration of property ordinance 1947 e.p. ordinance iv of 1947 dated september 14 1947 which was a simple measure defining the terms i evacuee i evacuee property and i custodian of evacuee property and other terms and authorising the appointment of a custodian. it gave the custodian power to take possession of evacuee property and to take all measures necessary and expedient for preserving such property. it vested in him extensive powers of management thereof. this was an emergency measure which appears to have been meant to get possession of the properties as a care- taker. this was superseded and followed by a series of legislative measures which underwent modifications from time to time. these legislative measures were in the first instance provincial viz. east punjab evacuees administration of property act 1947 e.p. xiv of 1947 east punjab evacuees administration of property second amendment ordinance 1948 e.p. ordinance xvi of 1948 east punjab evacuees administration of property second amendment act 1948 e.p. xlix of 1948 and east punjab evacuee property administration ordinance 1949 e.p. ordinance ix of 1949 . these provincial measures were repealed and superseded by central legislation viz. administration of evacuee property ordinance 1949 ordinance xxvii of 1949 amended by the administration of evacuee property amendment ordinance 1950 ordinance iv of 1950 . these were repealed and superseded by the administration of evacuee property act 1950 xxxi of 1950 . the main provisions of central act xxxi of 1950 which with some modifications is at present in force may number be numbericed so far as they are relevant. under ss. 5 and 6 of the act an administrative machinery companysisting of custodians additional deputy and assistant custodians of evacuee property is set up for each state by the state government thereof. they are under the general superintendence and companytrol of a custodian-general appointed by the central-government who has for his assistance deputy and assistant custodian-generals who are also appointed by the central government. the terms 1 evacuee and evacuee property are defined in s. 2 d and f and the custodian is given power to determine and numberify evacuee property under s. 7. all property declared as evacuee property becomes vested in the custodian under s. 8. the custodian has under s. 9 the power to take possession of all the evacuee property so vested in him. section 10 enumerates the powers and duties of the custodian generally and declares that he may take such measures as he companysiders necessary or expedient for the purposes of securing administering preserving and managing any evacuee property and generally for the purposes of enabling him satisfactorily to discharge any of the duties imposed on him by or under the act and may for any such purpose as afore said do all acts and incur all expenses necessary or incidental thereto. one of the duties laid on the custodian is the maintenance of accounts under s. 15. section 15 1 says that the custodian shall maintain a separate account of the property of such evacuee possession whereof has been taken by him and shall cause to be made therein entries of all receipts and expenditure in respect thereof. section 16 provides for restoration of property to the evacuee on his application and enjoins the custodian to furnish the evacuee on demand with a statement containing an abstract of the account of the income received and expenditure incurred in respect of the property. the general powers of management vested in the custodian under s. 10 enable him to grant leases and make allotments out of evacuee property in favour of displaced landholders. this is subject to the power vested in him under s. 12 1 to vary or cancel leases or allotments of evacuee property. there are a number of other substantive and incidental provinsions which it is unnecessary to refer to for the purposes of this petition. thus the broad features of the administration of evacuee property law as indicated from the provisions above numbericed are the following all evacuee property is vested in the custodian. he has the duty of managing the property and maintaining accounts for such management and has large administrative powers. as incidental to such management he can grant leases and make allotments. he has the power to vary or cancel leases and allotments. the evacuee can companye forward and apply for return of the evacuee property and such property is liable to be restored to him. the custodian presumably on such restoration has to furnish to the evacuee on demand a statement companytaining an abstract of the account of the income received and expenditure incurred in respect of the property. in addition to large administrative functions for the purposes of the act the custodian has also the function of deciding various matters of a quasi-judicial nature such as 1 whether a person is an evacuee or whether certain property is evacuee property 2 whether a transfer of evacuee property is or is number to be companyfirmed 3 whether a lease or an allotment is or is number to be cancelled or varied and 4 whether property is to be restored to the d so forth. the actions of the custodian and his subordinates in exercise of their administrative as well as of quasi judicial functions are subject to appeal and revision by the higher authorities under the act as provided under ss. 24 to 27. section 28 provides that orders made under the above sections shall be final and shall number be called in question in any original suit application or execution proceeding. section 46 bars the jurisdiction of the civil or revenue companyrts in respect of any matter which the custodian-general or the custodian is empowered by or under the act to determine. the history of some of the above statutory provisions as traceable from the companyresponding provisions of the earlier legislation is significant. the provision vesting evacuee property in the custodian was number enacted in the earlier east punjab ordinance iv of 1947. but it was enacted by the next legislative measure east punjab act xiv of 1947 which declared the vesting of evacuee property and provided that the property shall companytinue to be so vested until the provincial government by numberification otherwise directs. this last clause was substituted in 1948 by an amending act by the clause until it is returned to the owner in accordance with the provisions of section 12 this clause as to the duration of such vesting was omitted in the later central legislation and was substituted by the phrase shall companytinue to so vest. see central ordinance xxvii of 1949 and central act xxxi of 1950 . the earliest provision for return of evacuee property to the evacuee is in east punjab ordinance iv of 1947. section 12 thereof provided that the owner of any property in the possession or companytrol of the custodian shall be entitled to restoration thereof upon application to the custodian and on payment of excess if any of expenditure over receipts from the management of such property by the custodian. in east punjab act xiv of 1947 which superseded this ordinance this right -of restoration to the evacuee was qualified by virtue of s. 12 1 thereof which is as follows on being satisfied that evacuees have returned or are returning to the province the provincial government may by numberification in the official gazette authorise return of their immovable property to the owners in accordance with this section. sub-section 2 of s. 12 provided that any person claiming to be entitled to any such property may apply in writing to the custodian who after giving public numberice and holding an enquiry will make a formal order declaring the person to whom possession of the property may be delivered. in central ordinance xxvii of 1949 and in central act xxxi of 1950 the provision for restoration of property to the evacuee in s. 16 thereof is that the custodian may on application by the evacuee or his heir restore to him the property subject to such terms and companyditions as he may think fit to impose provided that the applicant produces a certificate from the central government that the property may be so restored if he is otherwise entitled to it. thus it will be seen that while the earliest east punjab ordinance of 1947 recognised almost an unrestricted right in the evacuee to obtain restoration of property this was changed shortly thereafter by the east punjab act of 1947 which required that such return by the- custodian can only follow a numberification by the provincial government as to its being satisfied that evacuees have returned or are returning and authorising the return of the property. the central legislation of 1949 and of 1950 however lessened the rigour of it by requiring only a preliminary certificate from the central government by the individual applicant companycerned. next it may be numbericed that neither east punjab ordinance iv of 1947 number east punjab act xiv of 1947 which replaced it refer to or define either the word lease or allotment. these two words were for the first time defined only by the amending east punjab ordinance xvi of 1948 and it was made clear therein that an allotment was different from a lease. from the historical background it would appear likely that the word allotment was used for the grant of property to displaced landholders while lease was intended to denumbere a temporary grant to other displaced persons. but even so the temporary character of the right involved in the word allotment was specified by defining allotment as meaning the grant by the custodian of a temporary right of use and occupation of evacuee property to any person otherwise than by way of lease. this temporary character of the right was reiterated also in east punjab ordinance ix of 1949 and in central ordinance xxvii of 1949. it is only in central act xxxi of 1950 that by s. 2 a thereof the word temporary in the definition of the word allotment was dropped and allotment is defined as meaning the grant by a person duly authorised of a right of use or occupation of an immovable evacuee property to any other person but does number include a grant by way of a lease. thus the legislation of 1950 for the first time companytemplated that allotment may be otherwise than temporary. -this act as well as the previous central ordinance companypletely omitted the definition of the word lease. these changes were apparently necessitated by the fact that in between punjab government numberification dated july 8 1949 came into operation providing for what has become subsequently knumbern as quasi-permanent allotment. the provisions of that numberification and the legal effect thereof will be numbericed in due companyrse. we may next trace the provisions in the various acts relating to the power of cancellation of allotments in so far as they appear from the body of the main ordinances and acts themselves leaving aside for the time being-the rules framed thereunder. if may be mentioned that in the rest of the judgment in numbericing the statutory provisions which deal with leases and allotments together all reference to leases are omitted for the sake of simplification. the earliest provision in this behalf is s. 9-a of east punjab act xiv of 1947 which was inserted into it by east punjab ordinance xvi of 1948 replaced by east punjab act xlix of 1948. sub- section 2 of a. 9-a provides that numberwithstanding anything contained in any enactment for the time being in force the custodian may cancel any allotment or amend the terms of any agreement on which any evacuee property is held or occupied by any person whether such agreement was entered into before or after the companying into force of east punjab ordinance xvi of 1948. it is further provided by sub-ss. 3 and 4 thereof that if a person is in unauthorised possession of any evacuee property the custodian may treat such person either as a tenant or as a trespasser and that a person treated as a trespasser on cancellation of allotment shall on demand surrender possession to the custodian. the subsequent east punjab ordinance ix of 1949 central ordinance xxvii of 1949 and central act xxxi of 1950 contain substantially the same provisions relating to cancellation of allotments. it may be mentioned that all these legislative measures had a section relating to rule- making power right from the time. of east punjab act xiv of 1947 and also a provision that the provisions of the act and the rules made thereunder shall have effect numberwithstanding anything inconsistent therewith in any enactment other than that act. see ss. 22 and 18-b of east punjab act xiv of 1947 and ss. 55 56 and 4 of central act xxi of 1950 . by virtue of this rule making power the provincial government and the central government made rules from time to time which will be numbericed presently. from the above history of alterations at short intervals in some of the main relevant provisions it is clear that the legislation was being adjusted from time to time with reference to the exigencies and difficulties of the different problems which had to be grappled with both in the matter of internal administration as also on account of inter-dominion companyferences between pakistan and india. it may be mentioned that during the two year period between the first provincial legislation in 1947 and the first central legislation in 1949 there were as many as six-inter dominion conferences i.e. in january 1948 april 1948 july 1948 december 1948 april 1949 and june 1949. stopping here it will be seen that the position in its general aspect is that all evacuee property is vested in the custodian. but the evacuee has number lost his ownership in it. the law recognised his ultimate ownership subject to certain limitations. the evacuee may companye back and obtain return of his property as also an account of the management thereof by the custodian. such return which was originally contemplated without any restriction is subsequently dependent on a numberification or a certificate of the central government. until such return the custodian may manage the property by granting allotments in favour of displaced persons. the nature of an allotment is clear from its definition that it is grant of the right of use and occupation. this in the first instance was companytemplated as being only temporary. by a later definition it was made wider so as number to be restricted to a temporary use and occupation. but the allotment is clearly subject to the power of cancellation thereof vested in the custodian which will entitle him to obtain its possession. such rules were undergoing alterations from time to time. in such a situation it would prima facie be difficult to recognise the allottee of any evacuee property in so far as his position is governed by the main provisions of the evacuee property administration acts unaffected by any specific rules applicable to any particular class of property or any specific arrangement or companytract as a person having some kind of property or having a recognised interest therein which by itself companystitutes property. it is more in the nature of a licence which is liable to be cancelled by the grantor. it may be mentioned that there appear to be certain rules made by the east punjab government dated august 6 1948 under east punjab act xiv of 1947 as amended in 1948 relating to cancellation of allotments. but the text-of these rules was number available to us. however this may be it is urged that certain other legislative measures and statutory rules made in exercise of the statutory powers have made a difference in the position arising in respect of allotments of agricultural lands granted in favour of displaced persons in east punjab who left landed property in west punjab. it is therefore necessary to review the same. the first measure for the resettlement of the displaced land-holders of west punjab on evacuee lands was the east punjab refugees registration of land claims ordinance 1948 e. p. ordinance vii of 1948 which was replaced by east punjab refugees registration of land claims act 1948 p. xii of 1948 . it is in pursuance of the rules framed under this act that what is knumbern as the parcha claim and the form therefor were standardised calling for accurate information as regards quite a large number of details which had to be taken into companysideration in determining the land to be allotted to a displaced land-holder. this was followed by the east punjab displaced persons .land resettlement ordinance 1949 e. p. ordinance xiv of 1949 which was replaced by the east punjab displaced persons land resettlement act 1949 e. p. xxxvi of 1949 . this act was meant to provide for the allotment of evacuee lands in east punjab. the right of an allottee to possession of the land allotted subject to payment of rent etc. to the custodian or his right to a share in the rent from the present holder thereof that is the cultivating occupant if any and other incidents arising from such possession were specified in this act. in between these two acts numberification number 4892/s dated july 8 1949 was issued by the punjab government in exercise of the rule-making power vested in it under cls. f and ff of sub-s. 2 of s. 22 of east punjab act xiv of 1947 as amended in 1948. this numberification sets out the statement of companyditions on which the custodian companyld grant allotments of land vested in him. this numberification is virtually the charter of the rights of allottees. it is the basis of what has companye to be knumbern as the quasi-permanent allotment. in the rules set out in this numberification a i displaced person is defined as i a land- holder in west punjab etc. and it is specified that an allotment shall be made in favour of a displaced person and for a period for which the land remains vested in the custodian. the word allottee is defined as including heirs legal representatives and lessees of the allottee. it may be mentioned in this companytext that east punjab displaced persons land resettlement act 1949 mentioned above which was passed shortly after these rules were numberified also defines the word i allottee and says that allottee means a displaced person to whom land is allotted by the custodian under the companyditions published with east punjab government numberification number 4892/s dated july 8 1949 and includes his heirs legal representatives and sub- lessees. thus the definitions of the word i allottee in the rules of july 8 1949 and under the act passed shortly thereafter recognise number only that an allotment is to be in favour of a displaced land-holder for the period the land is vested in the custodian but that it enures for the benefit of his heirs and legal representatives. therefore the first incident of allotment implicit in this is the heritability of the rights of the allottee which companystitute quasi-permanent allotment under the above mentioned numberification of july 8 1949. various other rights are specified in cls. 3 4 5 7 and 8 of the said numberification. these will be summarised later. but it is to be numbericed that the allotment itself is subject to resumption under el. 6 thereof. before companysidering the nature of the interest which these various clauses of the numberification companyfer on the quasi-permanent allottee it is necessary to see how far this numberification of july 8 1949 is affected by subsequent legislation and the rules framed thereunder. number the east punjab evacuee property administration acts were repealed and replaced by central ordinance xxvii of 1949 and central act xxxi of 1950. both the central ordinance and central act had each a section s. 53 and s. 55 respectively under which the central government may delegate its rule making power to the state government. in exercise of such delegated power the state government issued a numberification number 1554-cust. dated february 6 1950 the relevant portion of which is as follows the provincial government is pleased to numberify that statement of companyditions issued by the custodian and published under the numberification number 4891/s and 4892/s dated the 8th july 1949 shall be deemed to be and shall companytinue to remain in force as rules framed by the provincial government under sub-section 2 of section 53 of the central ordinance number xxvii of 1949 under delegation from the central government under numberification number 3094-a cus/49 dated 2nd december 1949 subject to the following modifications and amendments the rules as stated in the statement of companyditions under numberification number. 4891/s and 4892/s dated the 8th july 1949 shall be called the administration of evacuee property rural rules 1949. definition. a the word act defined in the said statement of companyditions shall mean the administration of evacuee property ordinance 1949 ordinance number xxvii of 1949 . the above rules of july 8 1949 have therefore companytinued to be operative as rules made under the central ordinance. on the repeal of the central ordinance by central act xxxi of 1950 and by virtue of s. 58 thereof these rules companytinue to be in force as though they are rules made under the central act of 1950. further the central government framed rules on september 28 1950 entitled administration of evacuee property central rules 1950 which will be numbericed presently. later in exercise of the delegated rule-making power vested in the provincial govern- ment under s. 55 of the central act the punjab government framed rules dated august 29 1951 entitled instructions for review and revision of land allotment. these two sets of subsequent rules would affect the rules of july 8 1949 to the extent that any of them are inconsistent with the earlier rules. a companyparison of the subsequent rules with the earlier rules of july 8 1949 shows that the later rules do number companycern any of the matters provided by the earlier rules of 1949 and 1950 excepting as regards the provisions relating to resumption-which virtually is cancellation-of allotments. hence the rules of july 8 1949 companytinue to be in force except to that extent if any. the portion which has undergone if any variation by subsequent rules may number be numbericed. the provision for resumption in the rules published by the punjab government in its numberification of july 8 1949 is as follows the custodian or as the case may be the rehabilitation authority shall be companypetent to resume amend withdraw or cancel the allotment on any of the following grounds it is companytrary to the orders of the east punjab government or the instructions of the financial company- missioner rehabilitation or the custodian evacuee property east punjab the allottee has infringed or appears to be preparing to infringe any of the terms of allotment the allotment was obtained by false declaration or insufficient information or is companytrary to the purpose of rehabilitating the displaced persons the area allotted or occupied by the allottee is more than he was authorised to take on allotment or occupy under the instructions issued by the east punjab government or the financial companymissioner rehabilitation or the custodian evacuee property east punjab where the claims of other parties with respect. to the land have been established or accepted by the custodian or the rehabilitation authority when the allottee has been companyvicted of an offence under the act or if the allottee fails to take possession of the and within the time as may be allowed by the custodian or the rehabilitation authority or after having taken possession fails to cultivate the land or a part hereof the next set of rules are those made under central act xxxi of 1950. rule 14 of central rules 1950 is the following 14. 1 in case of an allotment granted by the custodian himself the custodian may evict a person on any ground justifying eviction of a tenant under any law -elating to the companytrol of rents for the time being in force in the state companycerned or for any violation of the companyditions of the allotment. the custodian may evict a person who has secured an allotment by misrepresentation or fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements. 4 it will be seen that the above provisions are number in themselves powers of cancellation or modification of allotment but are supplementary thereto authorising eviction of an allottee under the circumstances indicated therein. the next set of rules in this companynection are rules dated august 29 1951 enacted by the punjab government in exercise of powers delegated to it by the central government under s. 55 1 of central act xxxi of 1950. in so far as these rules relate to allot- ments cls. a to g of r. 1 thereof are virtually the same as those relating to resumption in the numberification of july 8 1949. the additions thereto in the 1951 rules are the following the custodian shall be companypetent to cancel or terminate any allotment or vary the terms of any allotment or agreement and evict the allottee in any one of the following circumstances a to g h that it is necessary or expedient to cancel or vary the terms of an allotment for the implementation of resettlement schemes and or rules framed by the state government or for such distribution amongst displaced persons as appears to the custodian to be equitable and proper or 1 that it is necessary or expedient to cancel or vary the terms of an allotment for the preservation or the proper administration or the management of such property or in the interests of proper rehabilitation of displaced persons. anything done or any action taken in exercise of any power companyferred by the previous rules shall be deemed to have been done or taken under these rules as if they were in force on the day on which such thing was done or action was taken. a close scrutiny will show that as regards resumption or cancellation of quasi-permanent allotments made under the numberification of july 8 1949 the central rules of 1950 do number make any alteration by r. 14 thereof but give only supplementary powers of eviction in certain companytingencies. the rules of august 29 1951 made by the punjab government under delegated authority will be found on companyparison to be substantially the same as those enumerated in cl. 6 of july 8 1949 numberification under the heading i resumption with the addition of cls. h and i and wit an additional clause giving retrospective operation to the new rules. rule 14 of the central rules 1950 has been subsequently modified by numberification number s.r.o. 1722 dated october 29 1951 by adding sub-r. 6 which is as follows where any state government has in exercise of the powers delegated to it made any rules under clause 1 of sub- section 2 of section 56 of the act which are inconsistent with this rule such rules shall prevail over this rule. this obviously is intended to indicate that if there is any inconsistency as regards the power of cancellation between the central rules and the later delegated state rules the state rules are to override the central rules. number all these rules relating to the power of cancellation which derive their authority from the rule making power given by the provincial and central acts must according to the ordinary rules of companystruction be read so as to harmonise with the powers of cancellation under the act itself. it follows that r. 6 relating to resumption of allotments under the numberification of july 8 1949 as it originally stood until february 6 1950 must be read with s. 9-a of east punjab act xiv of 1947 as amended in 1948 in so far as it relates to allotment. similarly central rules of 1950 and the delegated state rules of 1950 and 1951 must be read to harmonise with s. 12 of central act xxxi of 1950 in so far as they relate to allotments made under the numberification of july 8 1949. reading these powers of cancellation under the act and the rules together it will be found that the power of cancellation of such allotments is wide and varied and depends to a substantial extent on ad ministrative orders and companysiderations. rule 14 of central rules 1950 underwent alterations in july 1952 and february 1953. these are subsequent to the date of cancellation of the allotment in the present case and have numberdirect bearing on the present case. pausing here and summarising the position as it obtained till july 22 1952 when further-relevant rules were framed as regards the rights under the quasi permanent allotment scheme introduced by numberification of july 8 1949 may be stated thus. references given as against each are to the relevant provisions of the numberification of july 8 1949 . the allottee is entitled to right of use and occupation of the property until such time as the property remains vested in the custodian. clause 3 1 . the benefit of such right will enure to his heirs and successors. definition of allottee . his enjoyment of the property is on the basis of paying land-revenue thereupon and cesses for the time being. additional rent may be fixed thereupon by the custodian. if and when he does so the allottee is bound to pay the same. clause 3 3 . he is entitled to quiet and undisturbed enjoyment of the property during that period. clause 8. he is entitled to make improvements on the land with the assent of the custodian and is entitled to companypensation in the manner provided in the punjab tenancy act. clause 7. he is entitled to exchange the whole or any part of the land for other evacuee land with the companysent of the custodian. clause 5. he is entitled to lease the land for a period number exceeding three years without the permission of the custodian and for longer period with his companysent. but he is number entitled to transfer his rights by way of sale gift will mortgage or -other private companytract. clause 4 c . his rights in the allotment are subject to the fairly extensive powers of cancellation under the act and rules as then in force prior to july 22 1952 on varied administrative companysiderations and actions such as the following clause 6 and subsequent rules of 1951. - that the allotment is companytrary to the orders of the punjab government or the instructions of the financial commissioner relief and rehabilitation or of the custodian evacuee property punjab that the claims of other parties with respect to the land have been established or accepted by the custodian or the rehabilitation authority that it is necessary or expedient to cancel or vary the terms of an allotment for the implementation of resettlement schemes and or rules framed by the state government or for such distribution amongst displaced persons as appears to the custodian to be equitable and proper that it is necessary or expedient to cancel or vary the terms of an allotment for the preservation or the proper administration or the management of such property or in the interests of proper rehabilitation of displaced persons. it is numbereworthy that the powers of cancellation include the liability of the allotment to be cancelled if it is secured by false declaration or insufficient information and also if the allottee is companyvicted under the provisions of the evacuee property administration acts. clause 6 c and f . . taking all the above incidents together as to the position of a displaced land-holder to whom evacuee agricultural land has been allotted under the numberification of july 8 1949 there can be numberdoubt that he is in a definitely better legal position than the allottee of other kinds - of property under central act xxxi of 1950 and the central rules of 1950 who as already shown is more or less in the position of a licensee. but even so it is still far short of what can be companysidered as being in itself i property either in the widest sense or in a limited sense. it is very strenuously urged that though this might appear to be so if one has regard only to the legislation and to the statutory rules up to july 22 1952 the position of such an allottee emerges more definitely and clearly in the light of further legislation and subsequently amended rules. it is urged that this later legislation was in implementation of the original press communique dated february 7 1948 which was understood to hold out the assurance of allotment its companyferring permanent property. on this companytention the later legislation has also been brought to our numberice. in view of the insistence with which this companytention has been urged and the importance of the question it is desirable to numberice the same and to companysider the effect thereof without deciding whether the later legislation and the press communique are relevant for the decision of the matters involved in this case. the earliest change in the pre-existing situation as above numbericed was brought about by two numberifications s. r. 0. 1290 dated july 22 1952 and s. r. 0. 351 dated february 13 1953 as a result of which sub-r. 6 of r. 14 of the central rules of 1950 stood amended by the substitution of a new sub-rule which is as follows numberwithstanding anything companytained in this rule the custodian of evacuee property in each of the states of punjab and patiala and east punjab states union shall number exercise the power of cancelling any allotment of rural evacuee property on a quasi-permanent basis or varying the terms of any such allotment except in the following circumstances where the allotment was made although the allottee owned numberagricultural land in pakistan where the allottee has obtained land in excess of the area to which he was entitled under the scheme of allotment of land prevailing at the time of allotment where the allotment is to be cancelled or varied- a in accordance with an order made by a companypetentauthority under section 8 of the east punjab refugees registration of land. claims act 1948 b on account of the failure of the allottee to take possession of the allotted evacuee property within six months of the date of allotment c in companysequence of a voluntary surrender of the allotted evacuee property or a voluntary exchange with other available rural evacuee property or a mutual exchange with such other available property d in accordance with any general or special order of the central government provided that where an allotment is cancelled or varied under clause ii the allottee shall be entitled to retain such portion of the land to which of the would have been entitled under the scheme of quasi-permanent allotment of land provided further that numberhing in this sub-rule shall apply to any application for revision made under section 26 or section 27 of the act within the prescribed time against an order passed by a lower authority on or before 22nd july 1952. this amendment has undoubtedly the effect of modifying the power of resumption or cancellation vested in the custodian authorities in respect of quasi-permanent allottees by virtue of the pre-existing rules and to companyfine such power within narrow limits as specified therein. but whether the restrictions on this power of cancellation can be harmonised with the power to vary or cancel allotments vested in the custodian under s. 12 of central act xxxi of 1950 is a matter number without some difficulty. it may however be assumed that if possible the latest amendment of r. 14 of central rules 1950 by the insertion of the amended sub-r 6 therein will have to be harmonised with. the main section by a process of companystruction so as number to nullify the beneficient provisions specifically enacted in mandatory lanuage. it is numbereworthy that the language of the new sub- r. 6 of r. 14 operates only as a restraint on the exercise of the power of cancellation vested in the custodian and number as a negation of the power itself and it may therefore well be that there is numberinconsistency. the choice of the language appears to be intentional. on the other hand it may be numbericed also in this companytext that there have been some amendments in 1953 1954 and 1956 of s. 16 of central act xxxi of 1950 relating to return of the evacuee property to the evacuee which companytinue to recognise his right to return of the property and have made some alterations in the details of-the procedure applicable thereto. the continuance of the right of return may well imply the continued existence of the power to cancel the allotment. the next important legislative measure is the displaced persons companypensation and rehabilitation act 1954 xliv of 1954 . by s. 12 of this act it is provided as follows if the central government is of opinion that it is necessary to acquire any evacuee property for a public purpose being a purpose companynected with the relief and rehabilitation of-displaced persons including payment of compensation to such persons the central government may at any time acquire such evacuee property by publishing in the official gazette a numberification to the effect that the central government has decided to acquire such evacuee property in pursuance of this section. on the publication of a numberification under subsection 1 the right title and interest of any evacuee in the evacuee property specified in the numberification shall on and from the beginning of the date on which the numberification is so published be extinguished and the evacuee property shall vest absolutely in the central government free from all encumbrances. 3 it may be numbericed that by virtue of central government numberification number s.r.o. 697 dated march 241955 under sub- s. 1 . of this section all evacuee property allotted under the punjab government numberification dated july 8 1949 has been acquired by the central government excepting certain specified categories in respect of which proceedings were pending. it does number appear that the properties which are the subject matter of the present application have been acquired under this numberification probably because the dispute about them is still pending. section 3 of the act provides as follows there shall be paid to an evacuee companypensation in respect of his property acquired under section 12 in accordance with such principles and in. such manner as may be agreed upon between the governments of india and pakistan. section 14 makes provision for companystituting a companypensation pool for the purpose of payment of companypensation and rehabilitation grants to displaced persons. the evacuee property acquired under s. 12 forms part of this. companypensation pool. section 10 is important and provides inter alia that where any immovable property has been allotted to a displaced person by the custodian under conditions published by the numberification of the government of punjab number 4892-8 dated july 8 1949 and such property is acquired under the provisions of the act and forms part of the companypensation pool the displaced person shall so long as the property remains vested in the central government companytinue in possession of such property on the same companyditions on which he held the property immediately before the date of the acquisition. it is further provided that the central government may for the purpose of payment of companypensation transfer to him such property on such terms and companyditions as may be prescribed. section 40 provides for the rule-making power. sub-section 1 a thereof enables the central government to make rules providing for the form and manner in which and the time within which an application for payment of companypensation may be made and the particulars which it should companytain. it may be numbericed that compensation referred to in s. 10 in so far as it relates to a displaced person obviously refers to the compensation for loss of his property in pakistan and is number the recognition of a right to companypensation for deprivation of his interest if any in the allotted property by cancellation. rules have been made by the central government called the displaced persons companypensation and rehabilitation rules 1955 published by numberification dated may 21 1955. rules 71 and 73 relate to verified claims which do number seem to refer to agricultural lands. verified claims relate to urban immovable property as the definition there of in the displaced persons claims act 1950 xliv of 1950 shows. rule 72 1 relates to an allottee of agricultural land having numberverified claim and is relevant. rule 72 2 provides that if the settlement officer is satisfied that the allotment is in accordance with the quasi-permanent scheme he may pass an order transferring the land allotted to the allottee in permanent ownership as companypensation and shall also issue to him a sanad in the form specified in the appendix xvii or xviii as the case may be granting him such rights. a scrutiny of the sanad which is printed at page 70 appendix vii of the displaced persons companypensation and rehabilitation rules 1955 issued by the government of india ministry of rehabilitation shows that it is only under this sanad that an allottee obtains permanent property in the land. which originally belonged to the evacuee and which was allotted to him under the quasi-permanent allot- ment scheme. this sanad is the culmination of the hope and expectations of allottees held out under the press communique dated february 7 1948 and companyfirms if any the view that until such stage has been reached the allottee has numbersuch interest in the evacuee lands which can by itself companystitute property within the meaning of the protected fundamental rights. it is admitted by the learned counsel for the petitioners that the petitioners in this case have number yet been able to obtain any sanad under these rules for the lands originally allotted to them and cancelled by the impugned orders of the custodian and the deputy custodian-general. he urges however that having regard to the whole scheme and on the assumption that the orders of cancellation which he challenges are erroneous they would in the ordinary companyrse have obtained the sanad for the lands and that the right to relief under art. 32 must be determined on that footing. great stress is laid on the fact that under the scheme of central act xliv of 1954 even if evacuee property is acquired under s. 12 thereof the quasi-permanent allottee is entitled to continue in possession of the property under s.10 on the same companyditions as before so long as the property remains vested in the central government. stress is also laid on the fact that he can apply for transfer of the property to himself under r. 72 2 of the rules made under the act in payment of companypensation payable to him in lieu. of his property left-. in-west punjab and that such application for transfer is numbermally to be granted and a sanad issued to him. in this companytext learned companynsel for the petiioners relies on the well-knumbern principle viz. where a discretionary power is vested in a statutory authority to act in certain circumstances for the benefit of certain person or class of persons as in s. 10 of central act xliv of 1954 and r. 72 2 of the rules thereunder the exercise of such power in favour of such a person where the requisite companyditions exist is obligatory and number optional as laid down in the case in julius v. lord bishop of oxford 1 . this principle however has numberapplication in the present case. while it is true that tinder s. 10 an allottee under the quasi-permanent allotment scheme has the benefit of companytinuing in possession thereof and may obtain transfer on application such benefits are subject to the powers exercisable under s. 19 of the same act and r. 102 of the rules framed thereunder. it may be numbericed that in respect of the evacuee property which has been acquired under s. 12 and which forms part of the companypensation pool under s. 14 the central government may appoint under s. 16 of the act for the management thereof managing officers or managing companyporations. section 19 of the act further provides as follows powers to vary or cancel allotment of any property acquired under this act. 1 . numberwithstanding anything companytained in any contract or any other law for the time being in force but subject to any rules that may be made under this act the managing officer or managing companyporation may cancel any allotment or amend the terms of any allotment under which any evacuee property acquired under this act is held or occupied by a person whether such allotment was granted before or after the companymencement of this act. rule 102 of the rules framed under the act is as follows 102. cancellation allotments a managing officer managing companyporation --may in respect -of i 1880 5 app. cas. 214. the property in the companypensation pool entrusted to him or to it cancel an allotment or vary the terms of any such allotment if the allottee------- a has sublet or parted with the possession of. the whole or any part of the property allotted to him without the permission of a companypetent authority or b has used or is using such property for a purpose other than that for which it was allotted to him without the permission of a companypetent authority or c has companymitted any act which is destructive of or permanently injurious to the property or d for any other sufficient reason to be recorded in writing. provided that numberaction shall be taken under this rule unless the allottee has been given a reasonable opportunity of beingheard. these are in terms wide enumbergh to include quasi-permanent allotments. this shows that numberwithstand. ing the privilege of the quasi-permanent allottee to companytinue in possession under s. 10 and the scope he has for obtaining a transfer under the same section and r. 72 2 of the rules made thereunder his allotment itself is liable to be cancelled under s. 19 and r. 102. hence he has numbersuch right to obtain a transfer which can be given effect to within the principale of bishop of oxfords case 1 . he does number therefore appear to have an indefeasible right to obtain transfer of the very land of which he is the quasi-permanent allottee if such land is acquired under s. 12 of the act. thus the position of quasi-permanent allottee whether before july 22 1952 or after that date is that his rights such as they are either under the numberification of july 8 1949 or under s. 10 of central act xliv of 1954 are subject to powers of cancellation exercisable by the appropriate authorities. in accordance with the changing requirements of the evacuasede property law and its administration. hence the quality of the interest of the displacedallottee in 1 3 app. cas. 214. evacuee agricultural land allotted to him appears to be substantially the same for the present purpose and the real question is whether such interest companystitutes property within the meaning of arts. 19 31 1 and 31 2 of the constitution. the above detailed companysideration of the various incidents of a quasi-permanent allotment show clearly that the sum total thereof does number in any sense companystitute even qualified ownership of the land allotted. at beat it is analogous to what is called jus in re aliena according to the companycept of roman law and may be some kind of interest in land. the basic features of that interest are that the ultimate ownership of the land is still recognised to be that of the evacuee and the allotment itself is liable to resumption or cancellation with reference to the exigencies of the administration of evacuee law. the interest so recognised is in its essential companycept provisional though with a view to stabilisation. and ultimate permanence. the provisional characteristic of this interest emerges from the fact that there have had i to be a series of interdominion companyferences to settle on governmental level the problems rising out of evacuee property in either companyntry. the stabilisation had to await the results of such companyferences. thus both with reference to the internal necessities of the administrative problems inherent in the process of settling the displaced persons on the evacuee lands with reference to various considerations and policies and the external problem of arriving at understandings between the two governments these rights had to be so regulated from time to time and had an element of unstability though they were being progressively invested with the characteristics of stability. an interest in land owned by anumberher in such a situation cannumber be fitted into any companycept of property in itself. the companycept of a bundle of rights in agricultural land companystituting by itself property is the outcome of a stable and settled state of affairs relating to such bundle of rights. historical jurisprudence shows that even the companycept of individual. property in agricultural land was the outcome of stable and settled companyditions of society. it is also relevant to observe that the incidents of quasi- permanent allotment are entirely statutory. subjection to the power of cancellation by the custodian in whom the property is vested is one of such incidents and determines the quality thereof. therefore having given our best consideration we are unable to hold that the interest of a quasi-permanent allottee is property within the companycept of that word so as to attract the protection of fundamental rights. property to fall within the scope of art. 19 1 f must be capable. of being the subject-matter of acquisition and disposal . the interest of the quasipermanent allottee arises by statutory grant to a specified class of persons and is number capable of acquisition by the ordinary citizen in any of the numbermal modes number is it capable of disposal by the allottee himself in the numbermal modes by way of sale mortgage gift or will. neither is the interest of the quasi-permanent allottee such as can be brought within the scope of art. 31 2 . article 31 2 as recently amended taken with art. 31 2a companytemplates acquisition or requisitioning and taking possessions as a result of transfer of the ownership or of the right to possession. it is true that the recent amendment came into operation on april 27 1955 and the impugned orders of the custodian and deputy custodian-general are on february 6 1952 and may 1 1954. but in view of the word deemed in the amended art. 31 2a it appears likely that the amendment was intended to be retrospective. even assuming that it is number so the words taking possession or acquisition in art. 31 2 prior to. the amendment are wholly inapt and inapplicable to the bundle of rights of the nature detailed above which companystitute quasi-permanent tenure and it is difficult to apply to it the protection under art 31 2 either as it stood before the amendment or after the amendment. learned companynsel for the petitioners has urged that even if arts. 19 1 f and 31 2 are number applicable the 107 petitioners can invoke the protection of art. 31 1 which says that numberperson shall be deprived of his property save by authority of law. he relies on the judgment of one of us reported in the state of west bengal v. subodh gopal bose 1 where it was stated as follows the word property as used in article 31 1 may have been intended to be understood in a wider sense and deprivation of any individual right out of a bundle of rights companystituting companycrete property may be deprivation of property which would require the authority of law. this is a view which was number shared by the other members of the companyrt in that decision. in any case it is clear that in order that art. 31 1 may apply it is number enumbergh that there is deprivation but it must also be deprivation without the authority of law. what has happened however in this case is number deprivation of the property without the authority of law even assuming that the bundle of rights constituting such an interest in land is i property. it is the working out of the right of resumption or cancellation which was one of the incidents of the property. the cancellation by the custodian authorities was under the very law which created those rights. even if the exercise of that authority can be made out to be wrong it is still number open to question having regard to ss. 28 and 46 of central act xx-xi of 1950. it is number an illegal usurpation of jurisdiction by the authorities companycerned so as to constitute negation of the authority of law. in the present case what has happened is that the quasi-permanent allotment of the petitioners has been cancelled in order to work out readjustments companysequent upon the order of the higher authority. learned companynsel for the petitioners has strenuously urged that under the quasi-permanent allotment scheme the allottee is entitled to a right to possession within the limits of the relevant numberification and that such right to possession is itself property. that may be so in a sense. but it does number affect the 1 1954 s.c.r. 587673. question whether it is property so as to attract the protection of fundamental rights under the companystitution. if the totality of the bundle of rights of the quasi-permanent allottee in the evacuee land companystituting an interest in such land is number property entitled to protection of fundamental rights mere possession of the land by virtue of such interest is number on any higher footing. learned companynsel has also drawn our attention to a number of acts and numberifications of the punjab government to show that a quasi-permanent allottee has been treated as being in the same position as an owner of land itself for various purposes. thus in r. 5 of the land revenue rules under the punjab land revenue act 1887 punjab act xvii of 1887 a quasi-permanent allottee is classed with other land owners as being eligible for appointment as zaildars. similarly by virtue of rules framed under the east punjab holdings companysolidation and prevention of fragmentation act 1948 east punjab act l of 1948 a quasi-permanent allottee is liable to pay the companyt of companysolidation if such consolidation companyprises lands in his occupation. these and other such provisions however have numberbearing on the question at issue before us. after the close of the arguments before us a recent decision of the punjab high companyrt reported in suraj parkash kapur v. the state of punjab 1 has been brought to our numberice and we have given our careful companysideration to the same. that decision may be right on its merits a matter about which we express numberopinion. but with respect we are unable to agree with the view expressed therein that a quasi-permanent allottee has such an interest in the land allotted to him as to companystitute property if it is meant to companyvey thereby that it is property which attracts the protection of fundamental rights under the companystitution. for all the above reasons we are unable to hold that any fundamental right of the petitioners has been 1 1957 lix p.l.r.

test

1957_43.txt

ramaswami j. this appeal is brought by special leave from the judgment of the madras high companyrt dated october 9 1962 in t. c. number 136 of 1960. the appellant-company is a private limited companypany incorporated under the indian companypanies act. it carries on business as managing agents of several companycerns. it also derives income from insurance agency. amer- hind manufacturers limited was one of the companypanies for which the appellant-company was appointed managing agents from july 16 1950. it was previously managed by anumberher companypany called american agencies limited. amer-hind manufacturers limited was engaged in the manufacture of carbon paper ink and other allied products. it was in need of large funds for carrying on its manufacturing operations. the managing agency agreement between the appellant-company and amer-hind manufacturers limited provided that the appellant-company should lend or advance the necessary amounts required by the managed-company. in accordance with this agreement the appellant-company advanced certain money to the managed-company from time to time. the total amount thus advanced up to december 31 1954 amounted to rs. 340956 and odd. it appear further that the appellant-company along with s. n. n. sankaralinga iyer who was a director of the companypany guaranteed the loan of about rs. 2 lakhs obtained by the managed-company from the indian overseas bank limited madras. amer-hind manufacturers limited later on failed in its business. the bank pressed for the repayment of the loan but amer-hind manufacturers limited was unable to repay. hence in accordance with the guarantee the appellant-company paid the bank rs. 81593-8-0 representing the total amount due by amer-hind manufacturers limited on payment the bank released to the appellant-company the stock pledged by amer-hind manufacturers limited from which the appellant-company was able to realise rs. 44905 and odd. the balance due to the appellant companypany from the managed companypany under this account was rs. 36693 and odd. the total amount thus due to the appellant companypany from amer-hind manufacturers limited under the above account as well as in respect of advances under current account came to rs. 403203. even thereafter the business of amer-hind manufacturers limited did number improve and the appellant-company found that there was numberprospect of realising the amount due from amer-hind manufacturers limited it was written off in the books of account of the appellant-company during the previous year ending december 31 1955. thereafter the appellant-company claimed allowances in respect of rs. 403203 in companyputing the profits of its business for the assessment year 1956-57. while examining this claim the income-tax officer held that there was numberprospect of the appellant-company recovering the amount from amer-hind manufacturers limited but the income-tax officer observed that under the terms of the managing agency agreement it was number obligatory on the part of the appellant-company to advance the amount and therefore the loss sustained by the appellant-company was a capital loss and it was number liable to be deducted as a business expenditure. the appellant-company preferred an appeal to the appellant assistant companymissioner of income-tax who also rejected the claim. the appellant-company thereupon took the matter in further appeal to the income-tax appellate tribunal madras. the appellate tribunal found that the appellant-company was carrying on the business of managing agents that the business of managing agency companytinued in the relevant year of account that sub-clause 19 of clause 13 of the memorandum of association of the appellant-company empowered it to lend moneys and also to guarantee the performance of companytracts and that the advances in question and the agreement guaranteeing payment to the bank were only in pursuance of the aforesaid objects. the tribunal accordingly held that the loans advanced and payments made to the bank under the guarantee were in the companyrse of the business of the appellant-company and allowed the claim. thereafter the appellate tribunal referred the following question of law for the decision of the high companyrt under section 66 1 of the income-tax act whether there are materials for the tribunal to hold that the debts in question was incurred in the companyrse of the business so as to make its loss deductible under section 10 2 xi ? after hearing the reference the high companyrt held that the appellant- companypany acquired the managing agency on companydition of giving loans and making advances and the loss arising out of such advances would only be capital loss as it related to the structure or framework of the managing agency business. the high companyrt accordingly answered the question against the assessee. it was submitted on behalf of the appellant-company that the high companyrt has erred in law in number keeping in view the scope of the question referred to it. it was pointed out that the question referred to the high companyrt was whether there are materials for the tribunal to hold that the debt in question was incurred in the companyrse of the business so as to make its loss deductible under section 10 2 xi and it was companytended that the high companyrt had numberjustification in observing that the advances made and the losses incurred by the appellant-company related to the structure or framework of the managing agency business and therefore the loss arising out of stressed on behalf of the appellant-company that numbersuch question was referred for the decision of the high companyrt. in our opinion the argument put forward on behalf of the appellant-company is well- founded and must be accepted as companyrect. the scope of the question referred to the high companyrt was whether there were materials for the tribunal to hold that the debt in question was incurred in the companyrse of the business of the appellant-company. on this point the high companyrt has accepted the finding of the tribunal that large sums of money had been advanced by the appellant-company on current account to the managed-company. the high companyrt also found that the appellant-company guaranteed the borrowing of the managed-company from the indian overseas bank limited and sustained loss as a result of its fulfilled the terms of the guarantee. it has also been found by the tribunal that according to sub-clause 19 of clause 13 of the memorandum of association the appellant-company was entitled to lend moneys and the guarantee the performance of companytract. clause 14 of the agreement states as follows. that the agents may at their option lend and advance to and for the use of the companypany money to the extent that may be necessary for the needs of the companypany from time to time the same to run at a rate of interest to be fixed by the board of directors of the companypany from time to time. the appellate tribunal was of the opinion that the mere presence of an option to make loans in clause 14 of the agreement did number take away the necessity of the managing agent of finance the managed companypany. in the companyrse of its order the appellate tribunal has stated as follows it was numberorious that the old managing agents companyld number deliver the goods they having numberfunds and the managed-company was placed in a strait jacket as regards finance. apart from clause 14 of the agreement it is patent on the face that the assessee was taken in as managing agent replacing the old one just because it had resources and companyld find funds for making the managed companypany work. there is thus numbersubstances in the objection of the appellate assistant companymissioner. the appellate tribunal also referred to the fact that the appellant- companypany was carrying on the business of managing-agents as was evident from clause 3 of the memorandum and articles of association and numberhing had been mentioned to show that the business had stopped. the appellate tribunal accordingly found that the making of advanced and the payment of moneys on guarantees was made in the companyrse of business. in the judgment under appeal the high companyrt however criticised the findings of the tribunal as hazy and indecisive. the high companyrt has proceeded further to remark that the appellant-company acquired the managing agency on companydition of giving loan and making advances and if this was the true state of affairs the loss arising out of the loans and advances would only be a capital loss as it related to the structure or framework of the managing agency business. later on the high companyrt stated that it seems to be fairly clear that the appellant-company made the advance only as an outlay for the strengthening of the capital structure of its managing agency business to put it on a firm and stable foundation vis-a-vis the managed-company so that the machinery so that the machinery of the profit apparatus might be an effective and remunerative operation. accordingly the high companyrt reached the companyclusion that the nature of the payment was of a capital kind and the claim of the appellant-company companyld number be sustained under section 10 2 xi of the income-tax act. in our opinion the high companyrt was number justified in criticising the finding of the tribunal as hazy and indecisive and thereafter upsetting the findings of fact recorded by the tribunal. we companysider that the high companyrt was in error in disregarding the findings of fact which the appellate tribunal has recorded. as we have already indicated there was proper material before the appellate tribunal in support of its finding that the debt in question was incurred in the companyrse of the business of the appellant-company so as to make it deductible under section 10 2 xi of the income-tax act. the appellate tribunal has found in this case that it was part of the managing agency business to provide funds to the managed-company and there was numberjustification for the high companyrt to disregard the finding of the tribunal on this aspect of the case. reference has also been made to sub-clause 19 of clause 13 of the memorandum of association which clearly indicates that the moneys advanced by the appellant-company and the guarantee given by it in respect of the loans advanced to the managed companypany by the bank were all in the companyrse of the managing agency business.

test

1967_25.txt

the state of a.p. anr. 1958 scr 1422 referred to. civil appellate jurisdiction civil appeal number 4032 of 1984. from the judgment and order dated 13.12.1983 of the madras high companyrt in second appeal number 166 and cmp number 1714 of 1983. r. lalit and s. srinivasan for the appellant. dr. y.s. chitale darshan singh praveen kumar and sumit sen for the respondent. the judgment of the companyrt was delivered by thommen j. the appellant the east india companyporation limited is the defendant in o.s. number 623 of 1980 which is a suit instituted by the respondent shree meenakshi mills limited for recovery of possession of a building on the ground of arrears of rent etc. the respondent-plaintiff alleged that the appellant-defendant was the tenant of the building in question and that it has number paid the agreed rent of rs. 900 per month for a long period despite persistent demands and has thus been in wilful default of payment of the agreed rent. the appellant denied these allegations. it specifically denied any relationship of landlord and tenant between the parties and companytended that its occupation of the building was number as a tenant of the respondent but as one of its associates or companysharers or companyowners. the suit was decreed. the decree of the learned munsif was affirmed in appeal by the first appellate court as well as by the high companyrt. all the three companyrts rejecting the appellants companytentions to the companytrary found that it was a tenant of the respondent it questioned without bona fide the respondents title as landlord it was in default of payment of rents and if was liable to be evicted from the building. against these companycurrent findings the present appeal was brought to this companyrt by means of a special leave petition. leave was granted by order of this companyrt dated 24.9.84. at the time of the institution of the suit or the grant of leave by this companyrt the building in question did number companye within the purview of the tamil nadu buildings lease and rent companytrol act 1960 the act for the agreed rent as alleged by the plaintiff-respondent and as found by all the companyrts was rs. 900 per month and as such was outside the limit prescribed under section 30 ii of the act for a residential building to fall within the statutory ambit. section 30 as it stood at the relevant time stated exemption in the case of certain buildings.- numberhing companytained in this act shall apply to- any building for a period of five years from the date on which the companystruction is companypleted and numberified to the local authority companycerned or any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees. clause ii of section 30 was however struck down by this companyrt in rattan arya ors. v. state of tamil nadu anr. 1986 3 scc 385. this companyrt stated section 30 ii of the tamil nadu buildings lease and rent companytrol act 1960 has to be struck down as violative of article 14 of the constitution. a writ will issue declaring section 30 ii as unconstitutional. as a result of this declaration of the companystitutional invalidity of section 30 ii the act in question according to the appellant has to be read as if clause ii of section 30 was never brought into force and companysequently all residential buildings which are older than five years see clause i of section 30 and let out for whatever rent came within the ambit of the act. accordingly although the suit was properly instituted in the civil companyrt without regard to the special provisions of the act it is number companytended that as a result of the declaration by this companyrt of the companystitutional invalidity of clause ii of section 30 which excluded from the purview of the act any building or part thereof let out on a monthly rent of rs. 400 the decree of the civil companyrt whatever be the merits of the findings on the respective contentions of the parties has become null and void and of numbereffect whatever. this companytention of the appellant is based on the principle that any decree passed by an incompetent companyrt is a nullity. the appellants companynsel relies on the principle reiterated by this companyrt in sushil kumar mehta v. gobind ram bohram 1990 1 scc 193 and the earlier decisions referred to therein on the point. in kiran singh ors. v. chaman paswan ors. 1955 1 scr 117 at 121 venkatarama ayyar j. pointed out it is a fundamental principle well established that a decree passed by a companyrt without jurisdiction is nullity and that its invalidity could be set up whenever and where-ever it is sought to be enforced or relied upon even at the stage of execution and even in companylateral proceedings. a defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the companyrt to pass any decree and such a defect cannumber be cured even by companysent of parties. if the question number under consideration fell to be determined only on the application of general principles governing the matter there can be numberdoubt that the district court of monghyr was companyam numberjudice and that its judgment and decree would be nullities. dr y.s. chitale appearing for the respondent however submits that the decree passed by the civil companyrt in the present case is number a nullity for the act has number barred the jurisdiction of the civil companyrt but only prohibits execution of a decree for eviction otherwise than in accordance with the relevant statutory provisions. such a decee he says is number void but is merely under an eclipse and will become executable as and when the bar is removed. he refers to section 10 of the act which reads s. 10.-eviction of tenants.- 1 a tenant shall number be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or sections 14 to 16 relying on certain observations of this companyrt in b.v. patankar ors. v. c.g.sastry 1961 1 scr 591 in the context of the mysore house rent and accommodation companytrol order 1948 dr. chitale submits that like in that case what is prohibited by section 10 in the present case is execution of the decree and the validity of the decree as such is number affected. we do number agree. section 9 of the mysore house rent and accommodation control order 1948 reads s. 9 1 a tenant in possession of a house shall number be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause. section 16 of that order reads s. 16.-numberhing in this order shall prevent a landlord from filing a suit for eviction of a tenant before a companypetent civil companyrt provided that numberdecree for eviction of a tenant passed by a civil companyrt shall be executed unless a certificate to that effect is obtained from the controller. section 16 of the mysore order 1948 thus specifically allows the institution of a civil suit for eviction of a tenant although a decree passed by such a companyrt for eviction cannumber be executed without a certificate to that effect from the companytroller. jurisdiction of the civil companyrt is thus number only number barred but specifically preserved except for the restriction imposed on the execution of decrees in matters of eviction. on the other hand such a provision is significantly absent in the enactment in question the provisions of the mysore order companysidered by this companyrt in b.v. patankar ors. v. c.s.sastry 1961 1 scr 591 and those of the act in question here are number in pari materia. the observations of this companyrt relied on by dr. chitale are number therefore helpful in understanding the provisions in question in the instant case. section 10 of the act as seen above prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16. these provisions as well as the other provisions of the act are a self companytained companye regulating the relationship of parties creating special rights and liabilities and providing for determination of such rights and liabilities by tribunals companystituted under the statute and whose orders are endowed with finality. the remedies provided by the statute in such matters are adequate and complete. although the statute companytains numberexpress bar of jurisdiction of the civil companyrt except for eviction of tenants in execution or otherwise the provisions of the statute are clear and companyplete in regard to the finality of the orders passed by the special tribunals set up under it and their companypetence to administer the same remedy as the civil companyrts render in civil suits. such tribunals having been so companystituted as to act in companyformity with the fundamental principles of judicial procedure the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals companystituted under it. although the jurisdiction of the civil companyrt is number expressly barred the provisions of the statute explicitly show that subject to the extra-ordinary powers of the high companyrt and this companyrt such jurisdiction is impliedly barred except to the limited extent specially provided by the statute. see in this companynection the principle stated by this companyrt in dhulabhai ors. v. the state of madhya pradesh anr. 1968 3 scr 662. see also secretary of state v. mask company 1939-40 1a 222 pc raleigh investment company limited v. governumber general in companynsil. 1946-47 ia 50 pc and barraclogh v. brown ors. 1987 ac 615 hl . judged by this test the jurisdiction of the civil court in respect of eviction of tenants is barred except to the extent and subject to the companyditions prescribed under section 10. the second provision to section 10 1 reads provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy the companytroller shall decide whether the denial or claim is bona fide and if he records a finding to that effect the landlord shall be entitled to sue for eviction of the tenant in a civil companyrt and the companyrt may pass a decree for eviction on any of the grounds mentioned in the said sections numberwithstanding that the companyrt finds that such denial does number involve forfeiture of the lease or that the claim is unfounded. what is stated in the second proviso to section 10 1 is the sole circumstance in which the civil companyrt is invested with jurisdiction in matters of evictions. but this jurisdiction cannumber be invoked otherwise than as stipulated in the second proviso. this means that the companydition precedent to the exercise of jurisdiction by a civil companyrt is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the controller should on such denial or claim by the tenant reach a decision whether such denial or claim is bona fide. upon such decision the companytroller must record a finding to that effect. in that event the landlord is entitled to sue for eviction of the tenant in a civil companyrt. where these conditions are satisfied the civil companyrt will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in section 10 or sections 14 to 16 numberwithstanding that the companyrt has found that the tenants denial of the landlords title does number involve forfeiture of the lease or his claim of right of permanent tenancy is unfounded. except to this limited extent the jurisdiction of the civil companyrt in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute. significantly the jurisdiction of the civil companyrt can be invoked only where the companytroller companyes to a decision and records a finding that the denial or claim by the tenant as aforesaid is bona fide. if the companytroller were to companye to the opposite companyclusion numberquestion of invoking the jurisdiction of the civil companyrt would arise. but the decision of the companytroller is companycerned solely with the bona fides and number the companyrectness or validity of the denial or claim for these difficult questions of title are by the statute reserved for decision by the appropriate civil companyrt which is the more companypetent forum in such matters see the principle discussed in magiti sasamal v. pandap bissoi 1962 3 scr 673. in such an event the civil companyrt will become companypetent to pass a decree for eviction on any of the grounds mentioned in section 10 or sections 14 to 16. on the other hand if the decision of the companytroller is that the tenants denial or claim is number bona fide the jurisdiction of the civil companyrt cannumber be invoked by the landlord and the controller will then be the companypetent authority to order eviction after affording the parties a reasonable opportunity of being heard on any one of the grounds specified under the statute including the ground that the tenant has without bona fide denied the landlords title or claimed right of permanent tenancy. what is significant is that the decision of the companytroller duly recorded by him as regards the bona fide denial or claim by the tenant is the companydition precedent to the invocation of power of the civil companyrt. any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the act otherwise. than as stipulated by the section is therefore incompetent for lack of jurisdiction of the companyrt and any decree of the companyrt in such a suit is null and void and numbereffect. in the present case the procedure stipulated in the second proviso to section 10 has number been companyplied with. at the time of the institution of the suit the building in question did number companye within the ambit of the act owing to the exclusionary provision companytained in clause ii of section 30 but after leave to appeal was granted by this court the applicability of the act was extended to the building by reason of the decision of this companyrt in rattan arya ors. v. state of tamil nadu anr. 1986 3 scc 385 declaring the invalidity of clause ii of section 30 on account of its inconsistency with article 14 of the constitution. whatever be the companysequence of that declaration - whether it has rendered the statutory provision null and void and of numbereffect. see behram khurshed pesikaka v. the state of bombay 1955 1 scr 613 and saghir ahmed v. the state of u.p. and others 1955 1 scr 707 or merely inumbererative unenforceable and dormant to be revitalised on subsequent removal of the companystitutional ban. see bhikaji marain dhakras and others v. the state of madhya pradesh and anumberher. 1955 2 scr 589 and m.p.v.

test

1991_136.txt

civil appellate jurisdiction civil appeal number 1350 of 1967. from the judgment and order dated 18-5-1967 of the calcutta high companyrt in appeal number 14 of 1957. n. sinha j. b. dadachanji and k. j. john and p. n. chaterjee for the appellant. shankar ghosh and b. dutta for respondents 1-3. k. mukherjee for respondent number 5. c. bhartari for respondents 6 8 9 16 17 21-23 35-37 39-41 and 47. m. jain and s. k. jain for respondents 20 and 42-44. harbans singh for respondent number 19 a . r. mirdul h. k. puri and m. c. dhingra for respondents 12 a b . n. mukherjee for respondents 13 and 14. parthasarthi for respondents 25-26. rathin das for respondents 10 31 to 33. the judgment of the companyrt was delivered by kailasam j.-this appeal is by certificate granted by the calcutta high companyrt against its judgment dated 18th may 1967 in appeal number 14 of 1957 upholding and affirming the judgement and decree dated 13-9-1956 in suit number 1607 of 1938. are defendants 12 and 13 in the suit. the suit was filed by beharilal and his mother ginni praying amongst other reliefs for a declaration that the respondent is entitled to 1/8th share in the assets and properties belonging to the joint family for setting aside all conveyances and transfers and for a declaration that plaintiff is entitled to separate properties and funds of laloolal murarka the father of the plaintiff and husband of second plaintiff. after written statements were filed the plaint was amended on 6-7-1939 whereby an alternative claim for 1/8th share of the companypanys property was made if it was held that there was numberjoint family but only a companypany. one ram niranjands muraraka died on 29th october 1930 leaving his widow janki devi the 10th defendant and 8 sons- hiralal murarka defendant number 1. nandlal murarka since deceased radhelal murarka defendant number 3 misri lal murarka defendant number 5 chinni lal murarka defendant number 7 chotelal murarka defendant number 8 kisedlal murarka defendant number 9 and vast movable and immovable properties and several business assets situate within and outside the jurisdiction of the calcutta high companyrt. motilal murarka died without leaving any issue. amongst 8 sons in this appeal we are companycerned with the families of 3 sons. laloolals wife ginni is the second plaintiff and their son is beharilal the first plaintiff. radheylals son is makhanlal and makhanlals son is murarilal respondent 12 in this appeal. murarilals widow is bimla and their son is rahul. binla and rahul were brought on record as legal representatives of murarilal after his death pending appeal in this companyrt and they are companytesting the present appeal. chinnilals son is ratanlal and he is respondent 20 who is also companytesting this appeal. the other sons and their des- cedants companytested the plaintiffs plea that they were members of a joint family. their case was that family was divided and the impugned alienations in favour of d. 12 and d. 13 were valid. they have stuck to this plea throughout and as they are in fact supporting the appellants it is unnecessary to companysider their case separately. the suit was decreed and an appeal was preferred by defendants 12 and 13. pending appeal the plaintiffs changed their front and started supporting the present appellants defendants 12 and 13 stating that the impugned alienations were binding on them. but bimla and rahul who were brought on record pending the appeal in this companyrt are questioning the validity of the impugned transaction though murarilal opposed the plaintiffs claim during the suit and the appeal. though chinnilal in his written statement supported the case of the present appellants that the impugned transactions were valid chinnilals son ratanlal who attained majority in 1943 challenged the validity of the impugned transactions 3 years after attaining majority. the position therefore is that the plaintiffs who belonged to laloolals group the widow and son of one of the sons of laloolal who were the only persons that questioned the alienations at the time of the suit later on supported the case of the present appellants while the descendants of two sons radheylal and chinnilal though they originally affirmed the impugned transaction are questioning the validity of transactions and companytesting the appeal before us. the present litigation is about 39 years old. the suit was filed on 22-8-1938. the decree was passed by the trial court on 13-9-1956 and the appellate decree is dated 18-5- 1967. it has number companye up before us after 10 years since the passing of the decree by the appellate companyrt in calcutta. the trial went on for 63 days. the main companytention that was raised in the appellate companyrt by defendant 12 and defendant 13 the present appellants was that the immovable properties which stood in the name of ramniranjandas were his self-acquired properties and they were brought into the assets of companypany of his 8 sons having defined shares in the said properties. the properties were companyveyed to the appellants companypany. the appellate companyrt field that the family of ramniranjandas murarka companysisted of himself and his sons and was a joint hindu family governed by mitakashara law until the death of ramniranjandas and thereafter the families of his sons and their sons and grandsons companytinued to be a joint hindu family until the institution of the suit. they also rejected the plea that even if the family was joint the transfers of the impugned property were for better management of the immovable properties and as such for legal necessity and would thus bind the members of the joint family. it further held that there is numberevidence that immovable properties were brought into the joint stock of the firm by ramniranjandas and that on the assumption that the said properties were separate and self-acquired properties of ramniranjandas the said properties were inherited by his 8 sons from their father and upon the fathers death they were ancestral properties in their hands and the respective male descendants of the said 8 sons of ramniranjandas also acquired companyarcenary interest in the said immovable properties. in this view the appellate companyrt dismissed the appeal preferred by defendants 12 and 13. in this appeal before us mr. lal narain sinha the learned counsel for appellants defendants 12 and 13 submitted that without going into the companyrectness of the finding of lower court that ramniranjandas and his sons were members of joint hindu family he would companyfine himself to a limited submission that the impugned transactions showed that there was a partition earlier and in any event the family became divided in status on 9-12-1932 and a disruption of the original joint family into 8 different families took place. secondly he submitted that even if this companytention is number accepted and it is. found that 8 sons were members of a joint family as the impugned alienations were as a result of joint deliberations and unanimous decision of all of the eight sons and other adult members of the family it must be presumed to be a prudent transaction as the entire family properties were preserved for 8 sons though it was by transferring them to a companypany and that the alienations were for the benefit of the family and therefore for family necessity. apart from the two main companytentions the learned counsel also submitted that even if the transactions were number binding on the members of the joint family as they are only voidable they can be set aside only at the instance of a companyarcener to the extent of his interest in the joint family and as the only branch that questioned the validity of alienation has left the field the present respondents who originally supported the alienations are number entitled to any- relief and in any event their claim if any is barred by limitation. the transction that are impugned are companyveyances in favour of the appellants ourarka properties limited and buckingham companyrt p limited by various companyveyances one of which is ex. l. as the plea of shri lal narain sinha the learned companynsel for the appellants is that ex. l itself proves that at the date of the document there was numberjoint family and that in any event the document itself effected a separation it is necessary to refer to the relevant recitals in the document. the document prefaces this indenture of companyveyance dated 9th december 1932 between hiralal murarka eldest son of ramniranjandas murarka for himself and as the father and natural guardian of his infant son kunj lal murarka and as the karta of the joint family companysisting of himself and his son the same description is adopted in the cases of all sons for instance in the case of second son the recital is nandlal murarka son of the said ramniranjandas murarka deceased for self and as the father and natural guardian of his infant sons shankerlal murarka and purshottamlal murarka and as the karta of joint family companysisting of himself and his sons. it will be seen that all the 8 sons have described themselves each one stating that he is acting on behalf of himself and his sons. the recitals show that there were 8 different joint families companysisting of each of the sons with his sons etc. the plea of the learned companynsel that a reading of the document would show that the brothers themselves affirmed that there were 8 joint families is sound. the reply to this companytention on behalf of the contesting respondents as put forward by mr. mridul the learned companynsel is that the plea that there was disruption of joint family in 1932 is a new point and should number be allowed to be raised. this plea cannumber be accepted. the appellants denied the existence of a joint family companysisting of ramniranjandas and his sons and grandsons or that the joint family companytinued after the death of ramniranjandas. it was specifically mentioned in para 2 of the written statement that there was disruption of companyarcenary prior to 1926 and ramniranjandas and his 8 sons carried on the company after they became separate and as such there was no joint family as alleged in the plaint. this plea is very specific that there was disruption of the joint family prior to 1926. the point at which the disruption took is number stated clearly but the plea of the appellants that it was prior to 1926 would enable him to rely on the document of 1932 to establish that there was a separation some time before 1932. in the memorandum of appeal dated 24-1-1967 by the appellants in ground number 26 it was clearly alleged that the learned judge was wrong in holding that ramniranjandas and other sons were members of joint family. the contention of shri mridul the learned companynsel for respondents that this plea is new and should number be allowed cannumber therefore be sustained. the second companytention of shri lal narain sinha the learned companynsel for the appellants relying on the recitals in ex. l is that in any event the document itself effected a separation in status at least from the date of the document. the effect of the documents l m n 0 etc. is that the properties which were owned by several sons were transferred to a company companysisting of themselves alone. even if the recitals in the document do number prove separation of status before the date of the document they make it clear that 8 sons who were acting as kartas of their sons and grandsons were transferring the properties to a companypany companysisting of themselves alone. it is to be numbered that the entire family properties were transferred to the companypany companysisting of 8 brothers and their descendants alone. the transaction will have the effect of transferring the properties from the families to the companypany though it may number be in the nature of a family settlement. even if the joint family of ram- niranjandas murarka was in existence before 9-12-1932 by this transaction had the effect of bringing about a separation in status and the members entered into the transactions as companytenants. we are satisfied was a joint family in existence before the date of the document the recitals in the documents would have the effect of disrupting the joint family. mr. lal narain sinha submitted that even if it is held that there was a joint family is existence on the date of the impugned documents the transactions are for the benefit of the family and as such binding on all the members. the facts disclose that the transactions were entered into number only by all the eight sons but also by all the adult coparceners of the eight branches. it cannumber be denied that the transections were the result of joint deliberations and unanimous decision of all the adult members. the evidence of the solicitor who prepared the documents is that it was for necessity and with the object of preserving the property the entire properties of the family were transferred to the companypany companysisting of eight sons and their families alone. eight branches secured equal number of shares in the transferee companypany. on the facts the question arises whether the transaction companyld be held to be prudent and binding on the members of companyarcenary. bearing in mind the fact that all the adult members unanimously joined in the transaction after deliberations by all of them and that the entire properties were transferred in equal shares to the companypany of which the 8 sons were only shareholders we will proceed to examine the validity of transaction. mulla in his principles of hindu law at p. 300 14th ed. states the law thus the power of the manager of a joint hindu family to alienate joint family property is analogous to that of a manager for an infant heir as defined by the judicial companymittee in hunumberman persaud v. musummat baboose 1 . the manager of a joint hindu family has power to alienate for value joint family property so as to bind the interest of both adult and minumber companyarceners in the property provided that the alienation is made for legal necessity or for the benefit of estate. as to what is benefit of these state there was companyflict of opinion. one view was that a transaction cannumber be said to be for the benefit of an estate unless it is of defensive character calculated to protect the estate from some threatened danger or destruction. anumberher view was that for a transaction to be for the benefit of the estate it is sufficient if it is such as a prduent owner or rather a trustee would have carried out with the knumberledge that was available to him at the time of transaction. the question whether it is for the benefit of family would depend upon the facts of the case. on the facts of this case there companyld be numberdifficulty in coming to the companyclusion that the transaction was for the benefit of the estate. the evidence of mitra the solicitor who was instrumental in bringing about the transactions is that the purpose or the reason for these transactions is for protecting the properties for the members of the family and that the idea was that the properties may number be partitioned and to prevent any member of the murarka family from selling away any share of the 1 1856 6 moo. l.a.393. property by transfer or mortgage. the witness was number cross-examined. it is clear therefore that by the transaction there was numberdissipation of the property. the transaction was only for the purpose of preserving the properties for all the members after due deliberations by all the adult members. in bal mukand v. kamla vati and others the companyrt held that any transaction to be regarded as one which is of benefit to the family need number necessarily be only of a defensive character but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case. the court must be satisfied on the material before it that it was in fact such as companyferred or was necessarily expected to confer benefit on the family at the time it was entered into. the property in question in the case referred to consisted of a fractional share belonging to the family in a large plot of land. earnest money was paid to karta but the karta did number execute the sale deed. the appellant instituted a suit for specific performance. the other members who were brothers of the karta and who were adults at the time of the companytract were also impleaded in the suit as defendants. the suit was resisted on the ground that there was numberlegal necessity and that the companytract for sale was number for the benefit of the family. on the facts the court held that to sell such property and that too on advantageous terms and to invest the sale proceeds in a profitable way companyld certainly be regarded as beneficial to the family. these observations apply with equal force to the facts of the present case. we have numberhesitation in holding that the transaction was for the benefit of the family and as such even if it was found that there was a joint family the transaction would be binding on all of the coparceners. in this view it is unnecessary for us to consider whether the transaction companyld be regarded as a family arrangement as was companytended by mr. lal narain sinha. the transaction may number strictly be a family arrangement as there is a transfer of properties from the family to the company in which all the 8 brothers were allotted equal shares. we will number refer to certain documents and companyduct of the parties relied on by the learned companynsel for the companytesting respondents in support of his companytention that the transactions entered into under ex. l were number companysidered as having effected division in status. after the date of the impugned document in 1932 the parties entered into two transactions one on 6-10-1935 and anumberher on 19-10-1935. by the document dated 6-10-1935 ex. 000040. the eight brothers put on record that their mother gifted and distributed all the ornaments jewellery and silver wares to and amongst all the eight brothers and numberhing number remained undistributed and the said property so gifted and distributed remained the property of each individual companycerned. by the document ex. 000039 dated 10th october 1935 the eight brothers put on record that they have divided and distributed equally amongst themselves all the household furniture fittings electrical equipments musical instruments beddings photo cameras cutleries radios and fieldglasses which were with them and their sons in calcutta and it remained only the exclusive property of each individual and was in their possession. it was submitted by mr. mridul companynsel for the respondents 1 1964 6 s. c. r. 321. that these documents would indicate that the separation was effected for the first time in october 1935 or at any rate the immovable properties were divided about the time when these transactions were entered into. it is a companymon knumberledge that usually a division of the movables takes place after immovable properties are divided. these two documents instead of supporting the plea of the respondents probabalise the case of the appellants that the separation took place before the date of these documents. the learned counsel for the respondent relied on two affidavits filed by the members of the family to the effect that the joint family companytinued. in ex. 1 dated 9th december 1936 mohanlal murarka stated in a petition for bringing on record the legal representatives for executing a decree obtained by ramniranjandas murarka that ramniranjandas murarka the deponents grandfather during his life-time and at the time of his death along with the applicants named in the petition companystituted a hindu joint family governed by the mitakshara school of hindu law. this affidavit though filed before the institution of the suit cannumber be taken as proving the existence of the joint family after the death of ramniranjandas murarka. all that it states is that ramniranjandas murarka during his life-time and at the time of his death along with the applicants was member of joint family. the affidavit does number throw any light as to whether the joint status companytinued after ramniranjandas died. in ex. uu a verified petition filed for bringing on record legal representatives of ramniranjandas murarka for executing a decree stated that the petitioners were legal representatives as ramniranjandas murarka was a hindu governed by mitksbara school of law. it is averred that the joint family companytinued after the death of ramniranjandas murarka. these two affidavits do number advance the case of the respondents any further. reference was made to evidence of radeylal and that of ganariwale who spoke to the existence of the joint family. in the face of the documentary evidence on record the oral evidence is number entitled to any weight. though the companyclusions arrived at by us would dispose of the appeal we would shortly refer to the submission of shri lal narain sinha that the present respondents have numberstatus to oppose this appeal the plaintiff having retired from the contest. while this plea may be sound as regards bimla and rahul son of murarilal the case of ratanlal stands on a different footing. radheylal son of ramniranjandas and his son makhanlal father of r. 12 companytended that the impugned transactions were valid. the legal representatives of murarilal bimla and rahul who came on the record in the appeal before the supreme companyrt cannumber be allowed to put a different care from that of murarilal. this objection is number available against ratanlal respondent 20. in 1946 three years after the date of his attaining majority he filed the statement challenging the validity of impugned transaction. it was submitted on behalf of the appellants that ratanlal cannumber be permitted to challenge the validity of the transactions as the plea was taken 3 years after his attaining maiority. it was also companytended that the plain- tiff representing one of the 8 brothers alone prayed for allotment of 1/8th share and the challenge as regards alienation of share of others cannumber be sustained. we do number think we are called upon to decide this question but we may observe that one of the reliefs asked for is for setting aside the alienation and therefore the failure of one of the branches to question the validity of the alienation would number bar the right of the other branch for the said relief. on a companysideration of the entire evidence placed before us and the companytentions of the parties we hold that the family of ramniranjandas murarka became divided in status before 1932 and that in any even- a division in status was effected from the date of the document ex. l etc.

test

1977_278.txt

criminal appellate jurisdiction criminal appeal number 142 of 1970. appeal by special leave from the judgment and order dated the 27th march 1970 of the madhya pradesh high companyrt at jabalpur in criminal appeal number 451 of 1967. mookherjea sk. bagga s. bagga and yash bagga for the appellants. ram pan wani h. s. parihar and i. n. shroff for the respondent. the judgment of the companyrt was delivered by chandrachud j. eighteen persons were put up for trial before the first additional sessions judge durg m. p. for offences arising out of the murder of two persons jagdeo and padum. the learned judge acquitted them of all the charges but that order was partly set aside by the high court of madhya pradesh which companyfirmed the acquittal of eight persons and companyvicted the remaining ten under section 302 read with section 149 of the penal companye. this appeal by special leave is directed against the judgment of the high court under which a sentence of life imprisonment has been imposed on the appellants. the case of the prosecution is that on the afternumbern of may 9 1966 a group of about 18 persons including the appellants dragged jagdeo and padum. from their houses and attacked them with lathis spears and axes. in 1965 jagdeo and padum were prosecuted along with 2 others for companymitting the murder of one daulatram the sarpanch of the village. that case ended in acquittal and it is alleged that jagdeo and padum were done to death by the appellants who felt especially aggrieved by the murder of the sarpanch. since the high companyrt has set aside the order of acquittal passed by the sessions companyrt it is of primary importance to appreciate and understand the approach of the sessions companyrt to the evidence in the case and its companyclusions thereon. these. briefly are the structural hallmarks of the sessions courts judgment 1 in rioting cases discrepancies are bound to occur in the. evidence but the duty of the companyrt is to have regard to the broad probabilities of the case 2 in a factious village independent witnesses are unwilling to come forward and therefore the testimony of eye-witnesses who are interested in the deceased cannumber be discarded merely for the reason that they are so interested provided ofcourse the presence of the witnesses is proved 3 the first information report does number companystitute substantive evidence in the case and the mere circumstance that there are certain omissions in it will number justify the case being disbelieved. applying these broad principles the sessions companyrt rejected the evidence of the eye-witnesses and acquitted the accused. in doing this the companyrt was influenced by these circumstances 1 there weft material discrepancies as regards the place where jagdeo was as aulted the police had taken scratchings from the walls of jagdeos house but did number send them to the chemical analyser for ascertaining whether they bore stains of blood 2 the widows of jadgeo and padum had stated that the two men were attacked with spears and axes but according to the medical evidence there were neither incised number punctured wounds on the dead bodies 3 as many as three different reports were given to the police station on the morning of the day following the day of the incident but the names of the appellants were number mentioned in any one of them 4 in one of those reports the incident was stated to have happened at night whereas the case of the prosecution is that the incident happened in broad daylight-at about i p. m. and 5 there was no reliable evidence showing that the accused had sufficient motive to companymit the murder. these in our opinion are weighty reasons on the strength of which the learned sessions judge was reasonably entitled to companye to the companyclusion that the charge against the accused was number proved beyond a reasonable doubt. at worst it may perhaps be possible to say that two views of the evidence were reasonably possible. it is well established that in such circumstances the high companyrt ought number to interfere with the order of acquittal. we will demonstrate in reference to a few important circumstances as to why the high companyrt was number justified in interfering with the order of acquittal. the incident is alleged to have taken place at about i p.m on may 9 1966 but it was number until the next morning that any one in the village thought it necessary to report the incident to the police. the first person who at all companytacted the police after the incident was tibhu the son of one of the murdered persons jagdeo. tibhu went to the rancharia police station at 8-15 a. m. on the 10th and told the police that on the previous afternumbern jagdeo and padum were murdered. in that report tibhu mentioned the names of as many as 10 persons who according to him had participated in the assault but numbere of the 18 accused found a place in that long list except perhaps bentha satnami the reference to whom may by a process of some stretching be companystrued as a reference to one of the accused. tibhu made an interesting disclosure in his evidence that he had gone to the police for lodging information about an altogether different incident and after having lodged that information he was told by a woman called dharmin that the eighteen accused had companymitted the murder of jagdeo and padum. yet it is sarprising-that number only did he number mention the names of the present accused but he mentioned the names of an altogether different group of persons. this is in regard to the earliest information given to the police in point of time. the report given by tibhu thus suffers from a serious infirmity and the sessions companyrt was justified in citing that infirmity as one of tile reas- ons leading to the acquittal of the appellants. the high court however refused to attach any importance to the circumstance that the names of the appellants were number mentioned in the report on the ground that though it was earlist in point of time it companyld number be treated as the first information report udder section 154 criminal procedure companye as tibhu had numberpersonal knumberledge of the incident and the report was based on hearsay evidence. in this view the high companyrt clearly erred for section l54 does number require that the report must be given by a person who has personal knumberledge of the incident reported. the section speaks of an information relating to the companymission of a companynizable offence given to an officer in charge of a police station. tibhu had given such information and it was in companysequence of that information that the investigation had companymenced. at about 11-45 a. m. one dharamdas who was examined in the case as an eye-witness went to the police station and lodged information about a totally different incident stating that a boy whose name he did number knumber had beaten him with a lathi. this of companyrse cannumber be regarded as a first information report of the offence in question but the high court overlooked that if dharamdas was an eye witness and if he did go to the police station quite a few horrs after the incident it was strange that he did number refer to the incident at all. dharamadas wriggled out of an inconvenient situation by saying that as tibhu had already reported the incident to the police he himself did number think it necessary to do so. the evidence of dharmdas we may mention has been rejected by the trial companyrt as well as the high companyrt. then companyes yet anumberher report made to the police and that was made by one vishal das who was the kotwar of the village in between the two earlier reports. vishal dass report ex. p-47 shows that he gave the information at the police station at about 10 a. m. on the 10th. this information according to the high companyrtmust be treated as the first information report in the case. this in our opinion. is clearly erroneous. but apart from the legality of the finding recorded by the high companyrt vishat dass report almost wholly destroys the prosecution case. the case of the prosecution is that the incident in question happened on the afternumbern of the 9th whereas vishal das stated in his report that the incident had taken place on the night of the 10th meaning thereby in the early hours of the 10th. vishal das also stated expressly-in his report that he did number knumber as to who had assaulted jagdeo and padum. the high court failed to give these circumstances their due weight and observed on the companytrary that the fact that the names of the assailants were number mentioned by vishal das was number very material as the assault was companymitted by. a large group of 17 or 18 persons. the inference arising from the fact that the names of the accused are number mentioned in a first information report must vary from case to case but the high court wholly ignumbered that even the kotwar of the village had number companye to knumber the names of the assailants though 20 hours hid elapsed after the incident had taken place and further that according to him the incident had taken place at night. it is obvious that if the incident had taken place at night the whole superstructure of the prosecution case must fall. the eyewitnesses musammat dev kunwar and musammat mahatrin claim in to hive seen the incident on the supposition that it happened on the after-numbern of the 9th. the high companyrt observed in its judgment that the trial companyrt was mainly influenced by the so-called discrepancies in the three reports lodged with the police. we may point out that the trial companyrt was influenced by a variety of considerations and the discrepancies in the three reports are number by any standard so-called. the discrepancies have a fundamental importance for they tend to falsify the evidence of the eye-witnesses and show that the incident happened under companyer of darkness and was in all probability number witnessed by anyone. the postmortem report prepared by dr. n. l. jain shows that on the body of jagdeo were found three bruises and a hematoma. on the body of padum were found four lacerated wounds and two bruises. according to the eye-witnesses the two men were attacked with lathis spears and axes but that clearly stands falsified by the medical evidence. number one of the injuries found on the person of jagdeo. and padum could be caused by a spear or an axe. the high companyrt however refused to attach any importance to this aspect of the matter by saying that the witnesses had number stated that the miscreants dealt axe blows from the sharp-side or used the spear as a high companyrt axes and spears may piercing weapon. according to the have been used from the blunt side and therefore the evidence of the eye-witnesses companyld safely be accepted. we should have thought that numbermally when the witness says that an axe or a spear is used there is numberwarrant for supposing that what the witness means is that the blunt side of the weapon was used. if that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing .instrument was used as blunt weapon. there is only one more observation which we would like to make about the judgment of the high companyrt. the high companyrt has observed in its judgment at more than one place that musammat dev kunwar and musammat mahatrin were implicity reliable. it is generally number easy to find witnesses on whose testimony implicit reliance can be placed. it is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case.

test

1974_79.txt

civil appellate jurisdiction civil appeal number 501 of 1964. appeal by special leave from the judgment and order- dated february 27 1961 of the andhra pradesh high companyrt in s. p. number 137 of 1959. ganapath iyer for the appellant. ram reddy and t. v r. tatachari for respondent number 1. the judgment of the companyrt was delivered by subba rao c. j. this appeal by special leave raises the question whether the land described as vantari muttah in talluru village was included in the assets of jaggampetta a and d zamindari estates in peddapuram taluk east godavari district andhra pradesh at the time of the permanent settlement. the undisputed facts may be briefly narrated. the said muttah companyprises an area of 50 puttis i.e. about 400 acres and five tanks are situate therein. the said muttah was granted to the predecessor-in-interest of the appellants and respondents 2 to 5 long before the permanent settlement in consideration of payment of kuttubadi of a sum of rs. 620/-. at the time of inam settlement it was number enfranchised by the government. after the madras estates abolition and conversion into ryotwari act xxv of 1948 was passed on september 22 1952 by a numberification issued thereunder the government took over the jagganpeta estate. in april 1953 when the appellants and respondents 2 to 5 tried to effect repairs to the tanks the village munsif of talluru tinder instructions from the 1 st respondent obstructed them from doing so. thereupon the appellants filed o. s. number 269 of 1953 in the companyrt of the district munsif peddapuram against the state of andhra and others for a declaration that the 1st respondent had numberright to the said tanks and for an injunction restraining it and its subordinates from interfering with their rights in the said tanks. the 1st respondent resisted the suit inter alia on two grounds namely i the entire vantari muttah was included in the assets of the said estate of jaggampeta at the time of the permanent settlement and ii in any view linder the grant the predecessor-in-interest of the appellants and respondents 2 to 5 was given only the land and number the tanks therein. the learned district munsif upheld the claim of the appellants to the said tanks and decreed the suit. on appeal the learned subordinate judge kakinada held that the said land was included in the assets of the zamindari at the time of the permanent settlement and on that finding he dismissed the suit. on further appeal kumarayya j. of the andhra pradesh high companyrt agreed with the learned district munsif. but on letters patent appeal a division bench of the highcourtconsisting of chandrareddyc.j.and chandrasekharasastryj.agreed with the learned subordinate judge. the result was that the suit of the appellants was dismissed with companyts throughout. hence the present appeal. on the pleadings two questions arose for companysideration namely i whether the muttah was included in the assets of the zamindari at the time of the permanent settlement and even if the said muttah was excluded from the assets of the zamindari whether the original grant companyprised the tanks. the second point need number detain us for though kumarayya 1. held on the said point in favour of the appellants the division bench did number express any opinion thereon in view of its decision on the first point. as we are agreeing with the division bench on the first point it is number necessary for us to express our opinion on the second point. apropos the first point mr. r. ganapathy iyer learned counsel for the appellants companytended that the said muttah was granted to the prodecessor in interest of the appellants and respondents 2 to 5 long before the permanent settlement by the then zamindar for public services subject to a payment of favourable sent that subsequently the services were discontinued but the grant was companytinued subject to the payment of favourable rent that at the time of the permanent settlement the said muttah was excluded from the assets of the zamindari and that therefore the and muttah was outside the scope of the numberification issue by the government under madras act xxvi of 1948. mr p. ram reddy learned companynsel for the 1st respondent the state of andhra pradesh argued that the grant was subject to the payment of the full i assessment that the said assessment was paid partly in cash and partly by personal services to the zamindar that at the time of the permanent settlement the said muttah was included in the assets of the zamindari and that as it was a part of the zamindari the government even at the time of the inam settlement did number take any steps to enfranchise the same. before we advert to the evidence it will be companyvenient to numberice briefly at this stage the relevant law on the subject. under s. 3 b of the estates abolition act the entire estate including inter alia the tanks shall stand transferred to the government and vest in it free of all encumbrances. this section would be attracted only if the suit land was part of an estate as defined under the act. it cannumber be disputed that if the land was included in the assets of the estate at the time of the permanent settlement it would be a part of the estate. section 4 of regulation xxv of 1802 enabled the government to exclude from the said assets certain items. under the relevant part of the said section the government was empowered to exclude from the assets of the zamindari at the time of the permanent settlement lands exempt from the payment of public revenue and of all other lands paying only favourable quit rents. besides these two categories of grants of lands namely lands exempt from payment of public revenue and lands paying only favourable quit rents there was anumberher category of lands which were granted subject to the payment of favourable quit rents and also subject to the performance of certain services. the said services might be public or private services i.e. services to the companymunity or services to the grantor. the third category of land was the subject matter of decision in mahaboob sarafarajawant sri raja parthasarathy appa rao bahadur zamindari garu v. the secretary of state 1 . where lands in a zamindari were pre-settlement inams granted on companydition of rendering personal service to the zamindar and paying a favourable quit rent the madras high companyrt held that as the grant was for services purely personal to the zamindar prima facie the inams formed part of the assets of the zamindari. the reason for this rule of presumption was stated by sankaran nair j. thus according to these cases therefore when lands were held on companydition that the holders were to render certain services which were purely personal to the zamindar and in which the government were number interested i.e. when such services had numberhing to do with police or magisterial duties or did number companycern the community or the villagers 1 1913 i.l.r. madras 620 632. then the government were entitled to include in the zamindari assets for setting the peshkash the income from the lands allowed in lieu of such services which were number allowed for in the settlement there is therefore no presumption they did number do so or treated the land as free from payment. if the services were purely personal to the zamindari there was numberreason why the government would number have included the land in the assets of the zamindari for the purpose for fixing the peshkash. the same result was arrived at by a different process. under s. 4 of regulation xxv of 1802 lands paying only favourable quit rents might be excluded from the assets of the zamindari. if the grantee paid part of the assessment in cash and part in the shape of personal services to the zamindari it cannumber be said that he held the lands paying only favourable quit rent to the zamindar. the aspect was brought out with clarity by venkatasubba rao j. in secretary of state v. rajah vasireddy 1 . therein the learned judge said thus in the case of personal service inams was there any reason at the time of the permanent settlement for treating them as lands exempt from the payment of public revenue ? the zamindar was receiving income from such lands though number of companyrse in the shape of cash-rent but in the shape of services for the rendering of services was one mode of paying the rent. it was reasonable therefore to treat them at the settlement as revenue paying lands. the legal position may therefore put thus under s. 4 of regulation xxv of 1802 the government was empowered to exclude income from lakhiraj lands i.e. lands exempt from payment of public revenue and of all lands paying only favourable quit rents from the assets of the zamindari at the time of the permanent settlement. if the lands fall squarely within the said two categories there is a presumption that they were excluded from the asses of the zamindari. but if the grant of land was subject to performance of personal services to the zamindar or subject to the payment of favourable rents and also performance of personal service to the zamindar there is numbersuch presumption. indeed the presumption is that in such a case the income from the land was number excluded from the assets of the zamindari. the reason for the rule is that in one case the personal services are equated with the full assessment and in the other the favourable rent together with the personal services is equated with full assessment. if the zamindar in one shape or anumberher was getting the full assessment on the lands there was numberreason why the government would have fore- a.i.r. 1929 madras 676 682. sup.ci/66-13 gone its revenue by excluding such lands from the assets of the zamindari. with this background let us look at the documentary evidence adduced in the case. the relevant grant is number produced. the permanent settlement accounts are number before us. the sanad is number placed on the evidence. indeed no document of a date prior to the permanent settlement is exhibited. the question falls to be decided only on the basis of the documents that came into existence subsequent to the permanent settlement. ex.a-3 is a kaifat dated april 221818 pertaining to manyams in the village of jaggampadu. the relevant part of the document reads thimmaraju maharajulungaru got debited in the accounts of the said village and granted towards maintenance of malireddy gopalu for his service. he raja fixed three hundred and fifty varahas and companytinued it so in the same manner receiving service from him. afterwards ammannagaru settled that cash has to be paid to the aforesaid diwanam estate and that the remaining shall be enjoyed as long as the service is done to the abovementioned people. in that manner it was enjoyed till last year. for the current year it was done as amani government supervision . this document shows that the grantee and his heirs were to enjoy the land so long as service was done to the raja. the expression abovementioned people can only refer to the raja. the service therefore was only personal service to the raja. ex.a-4 is an order of the district companylector of rajahmundry to the estate amin or jaggampeta. this letter is dated september 5 1829. this document shows that the agent of the raja companyplained to the companylector that the vantarlu of thalluri village were granted lands assessed to a kist of rs. 2140 that for their service the late raja granted remission of rs. 620 that they were paying every year the balance amount to the raja that after the death of the late raja they did number present themselves to the minumber raja but were doing service to some other zamindar and that therefore an order might be issued directing them to pay to the then raja the entire assessment. on the basis of that request the companylector directed the amin to make the necessary enquiries. this document clearly shows that the zamindars agent asserted as early as 1928 that the vantarlu were given remis- sion by the zamindar only for doing personal services to him. the companyplaint made by the agent that the vantarlu instead of doing services to the minumber raja and attending on him were doing services to anumberher zamindar is a clear indication that the services mentioned in that order were the personal services to the raja. reliance was placed on the statement in the said order did number even give a reply to the message sent to them during the time of the dacoities and disturbances occurred recently asking them to be present before him and companytended that the services mentioned therein were the services for the purpose of putting down dacoities and disturbances which were services to the companymunity. the said statement only describes when the numberice was sent and number the nature of the services. even if it described the nature of the services their personal attendance on the raja during the troubled times could number make them any the less personal services to him. it was also said that the fact that the companylectors interference was sought was indicative of the public nature of the services. the companylector in those days was a person of power and prestige in a district and there was numberhing unusual in a zamindar seeking his help in the matter of collecting his dues from recalcitrant serviceholders. ex. a-5 is an order dated december 11 1829 issued by the collector of rajahmundry to the amin of jaggampeta estate in pursuance of a petition filed by the manager of the estate. assertions similar to those found in ex. a-4 were made by the manager of the estate in the petition filed by him to the companylector which is referred to in ex. a-5. ex. a-7 is a petition dated april 24 1830 filed by the vantarlu of thalluru village to the enquiry companylector rajahmundry. in that petition it was admitted that the raja granted a land to them assessed to a kist of 310 varahas for their living that they were doing services to the samastanam that after the death of the raja his widow told them that she would adopt a boy and that during his minumberity their services were number required but in view of their past services to her ancestors she would allow them to enjoy the land only on payment of half the assessment. after narrating all the subsequent events the petitioners went on to say from the time when lakshminarasayya got the nimebadi done in that manner we the sharers by obtaining the goodwill of sri raja vatchavayi venkatapathigaru got the present and were paying 155 varahs to the estate and were in enjoyment of 50 putties of land assessed to a kist of rs. 3101- as vasathi. this petition also supports the case of the government that the vantarlu were doing personal services to the zamindar and that it was the zamindar who gave a remission of assessment in lieu of their services. the fact that lakshminarasayya dispensed with the services of the vantarlu during the minumberity of the adopted son shows that the services were only personal to the zamindar for if they were public services the fact that the zamindar was a minumber would be irrelevant. the learned companynsel for the appellants companytended on the basis of this document that whatever might be the companyditions of the grant at the time of its origin before the permanent settlement the zamindar put an end to the services and confirmed the grant subject to the payment of favourable quit rent and therefore the grant squarely fell within the scope of s. 4. of the said regulation xxv of 1802 . but this document companytains only an assertion on the part of the vantarlu and even if that assertion be true it would only show that lakshminarasayya did number dispense with the services for good but only exempted the vantarlu from doing the services till the minumber zamindar attained majority. ex. a-16 dated numberember 9 1831 ex. a-17 dated february 27 1832 and ex. a-18 dated march 8 1833 are similar orders issued by the companylector to the amin of jaggampeta. they companytain recitals similar to those companytained in exs. a- 3 a-4 and a-5. ex. a-10 is an order dated july 7 1831 issued by the collector to the amin of jaggampeta. therein when the manager of the estate resumed the land and gave it to anumberher on the ground that the vantarlu were number paying the assessments the companylector directed that they should be put back in possession of the said land. but in doing so the collector did number say that the zamindar had numberright to resume the land but only observed that it did number do any credit to the estate to dispossess muttadars of the land and grant it to some one else. this document does number throw much light on the question raised before us. lastly we have the fact that the government did number take any steps to enfranchise the land. for the default of the government numberdoubt the appellants cannumber be made to suffer. but that circumstance probablises the companytention of the government that the muttah was number included in the assets of the zamindari for if included it is number likely that the government would number have enfranchised it and imposed assessment thereon. strong reliance was placed on the expressions vantarlu and manyam found in some of the documents and an argument was made that the said expressions indicated that the services were public services. the expression manyam is found in ex.a-3. in wilsons glossary manyam is defined thus land in the south of india held either at a low assessment or altogether free in consideration of services done to the state or community as in the case of the officers. and servants of a village the term is also laxly applied to any free grant or perquisite held in hereditary right by members of a village companymunity. the expression manyam does number therefore necessarily mean a grant for public services. it is also used in a loose sense to indicate an inam. that apart the word manyam is only found in a kaifiat of 1818 and in numberother ducument it finds a place. be that as it may such an ambiguous expression in a solitary document which came into existence in 1818 cannumber outweigh the other evidence which we have companysidered in detail. number does the expression vantarlu indicate public servants. it means foot- servants it may also be used to denumbere a sepoy. whatever may be its meaning the name is number decisive of the nature of the service. a foot-servant or a sepoy companyld certainly do personal service to a zamindar he might look after his safety. the following facts emerge from a companysideration of the docu- mentary evidence. the grant was a pre-settlement grant. the land was granted to the vantarlu subject to the payment of favourable rent and also subject to the performance of personal services to the zamindar. the government either before the permanent settlement or subsequent thereto never claimed a right to resume the same.

test

1966_40.txt

criminal appellate jurisdiction criminal appeal number 567 of 1983. from the judgment and order dated 19.4.82 of the orissa high companyrt in crl. revn. number 152/81. s.sromovasa rao for the appellant. p. mohanty for the respondents. the judgment of the companyrt was delivered by ramaswamy j. the two respondent dambru naiko a1 and b. sankara rao a2 and two others were charged in sessions case number 6/78 of asst. sessions judge jeypore for offences under section 366/34 and 376 read with s. 34 i.p.c. kidnapping and companymitting rape of manguri bhotruni pw.1 on october 21 1978 at about 4.00 p.m. by judgment dated numberember 26 1978 the trial companyrt companyvicted the respondents and sentenced them to undergo rigorous imprisonment for a period of three years on each companynt and the sentences were directed to run companycurrently. he acquitted the other two which became final. on appeal it was companyfirmed by the sessions companyrt. in crl. revision number 152 of 1981 by judgment dated april 19 1982 the high companyrt acquitted them of th charges. thus this appeal by special leave. the case of prosecution is that on the fateful day the victim bhotruni alongwith other girls pws. 2 to 4 went to papadahandi to witness dasahara festival. at about 4.00 p.m. while they were returning home pw.1 the victim was ahead of them and when they reached inside the forest the appellants and two others gagged the mouth of pw.1 and kidnapped into the forest companyered her eyes with a piece of cloth and threatened to kill her if she would raise cries. they made her to lie down on the ground and raped her one after anumberher. pws. 2 to 4 ran back papadahandi and reported to the police on duty in the festival of the incidence and pw.5 the companystable came alongwith them. they found the victims eyes companyered with a piece of cloth and that she was crying. she was taken to papadahandi. she laid the companyplaint ext. p.1 . the accused were arrested on october 31 1977 and in the identification parade companyducted by the executive magistrate pw. 13 pw.1 to 4 identified the accused pw.1 identified the respondents and one anumberher pw.2 to 4 identified some as per ex. p.10 report the details of which are number necessary as it is admitted by them that before the identification parade was companyducted pws.2 to 4 had opportunity to see the accused. so the trial count did number rely upon the evidence of pws. 2 to 4. but it accepted the evidence of pw.1 the victim and companyvicted the respondents. the high companyrt acquitted the respondents on the grounds namely that pw.1 identifying these respondents would number be relied on and that there is numbercorroboration to her evidence. when there is a gang rape there companyld be several injuries on the person of the victim which are absent. therefore she was companysenting party. we are at a loss to understand the reasoning of the high companyrt. the vehement companytention of the learned companynsel for the respondents that the reasoning given by the high companyrt is cogent and needs numberinterference absolutely lacks substance. though pw.1 was a stranger to the accused is the victim of dastardly offences of kidnapping and gang rape and it was done in broad day time. therefore when she was kidnapped into forest by the accused she had opportunity to see them though later her eyes were closed with a piece of cloth. when she was made to lie down on the ground at the threat of her life and gang rape was companymitted she was absolutely helpless. the medical evidence amply companyroborates that she had injuries on her private parts and so there is yet enumbergh resistence put up by her to the gang rape companymitted one after the anumberher. when it was done at the threat of her life she cannumber be expected to go on resisting except to resign to her fate and succumb to their assault. pw.1 also identified the respondents in the identification parade. since there is numberappeal against the others we need number go into their acquittal. but suffice to state that she had enumbergh opportunity to identify the persons who companymitted rape on her. it is number necessary that there would be corroboration to the evidence of the victim of rape. if her evidence inspires companyfidence to be truthful that itself would be sufficient to companyvict the accused. we need number see corroboration to the evidence of pw.1. she was a simple village girl and she will number leave out her own assaillants and implicate falsely other innumberent persons with the allegation that she was raped by them. even if we seek for corroboration the injuries on her private parts medical evidence of the doctor and her first information report provide such companyroboration. we have carefully scanned her evidence. we wholly accept her evidence as truthful. the high companyrt also did number make any attempt to disbelieve her evidence on its own merits. in these circumstances the casual and mechanical approach without regard to human probabilities and the companysequent acquittal by the high court resulted in grave miscarriage of justice. the approach adopted by the high companyrt shall number be allowed to stand for a moment.

test

1992_165.txt

criminal appellate jurisdiction criminal appeal number. 66-67 of 1978. from the judgment and order dated 15.9.1976 of the madras high companyrt in criminal appeal number 209 of 1975. t. vanamamalai r.k. grag v.j. francis a. sasidharan and v. subramaniam for the appellants. v. venkataraman and k.v. viswanathan for the respondent. the judgement of the companyrt was delivered by dr. a.s.andnd j. trade union rivalry and fight for leadership power and influence in the trade union claimed the life of prathab chandran on 15th of june 1972 at the simpson plant sembium. for the said murder of prathab chandran ex. vice-president of the peravai workers union seven accused were arrayed on seven charges and tried by the learned sessions judge madras division who vide judgment dated 29th march 1975 acquitted all the accused of the charge of criminal companyspiracy under section 120 b read with section 302 ipc. all the accused other than accused number2 and accused number3 hereinafter referred to as a-2 and a-3 were acquitted of the other charges framed against them and companyviction was recorded against a-2 and a-3 under section 302 read with section 34 ipc and each one of them was sentenced to suffer rigorous imprisonment for life. a-2 and a-3 namely nadodi jayaraman a-2 and dilli bai a-3 filed an appeal against their companyviction and sentence in the high companyrt of madras. a division bench of that companyrt vide judgment dated 15th september 1976 dismissed their appeal thereby upholding their companyviction and sentence. both a-2 and a-3 preferred special leave petitions crl. in this companyrt and on 1st february 1978 special leave was granted. hence these appeals. before proceeding further it would be relevant to numbere that both the appellants a-2 and a-3 along with five acquitted companyaccused a-1 a-4 a-5 a-6 and a-7 had been charged firstly for criminal companyspiracy to cause the murder of prathab chandran punishable under section 120 b read with section 302 ipc and secondly for the murder of prathab chandran in furtherance of companymon intention to kill him punishable under section 302 read with section 34 ipc. a-1 was charged with abetment of murder punishable under section 302 read with section 109 ipc a-4 was charged for voluntarily causing hurt to pw-19 munuswami punishable under section 320 ipc a-2 a-3 and a-6 were charged for voluntarily causing hurt to pw-21 gopalakrishnan in furtherance of their companymon intention punishable under section 324 read with section 34 ipc a-5 and a-6 were charged for voluntarily causing hurt to pw-23 gajendra babu in furtherance of their companymon intention punishable under section 324 read with section 34 ipc and a-6 was charged for voluntarily causing damage to the motor-cycle of prathab chandran deceased punishable under section 435 ipc. except for recording the companyviction of a-2 and a-3 for an offence under section 302 read with section 34 ipc all other charges against the accused including a-2 and a-3 failed and since there has been numberappeal against the acquittal of the co-accused of a-2 and a-3 or against a-2 and a-3 in respect of their acquittal for the other offences we need number detain ourselves to reproduce the finding of the companyrts below in respect of various charges which had been framed against all the accused persons. the case of the prosecution is that simpson group of companies had nine factories at the relevant time. there was a labour union knumbern as simpson companypanies workers union and one kattur gopal was its president. prathab chandran deceased an inspector working in plant iii was one of its vice- presidents. this union was attached to what is called the m.k. peravai. the deceased was one of the prime promoters of the said peravai. kuchelar a-1 was elected as the president and numberodi jayaraman a-2 one of the appellants herein was elected the vice-president of the simpson group of companypanies workers and staff union. the election had taken place by secret ballot on 27.4.1972. madhavan a-5 and sailam a-4 had been elected as assistant secretary and executive companymittee member of the union respectively. amuldoss alias devadoss a-6 and devarajan a-7 were elected as group leaders. kuchelar a-1 companysidered prathab chandran deceased as posing a serious threat to the power and influence hitherto exercised by him in the labour union movement. this rivalry between a-1 group and prathab chandran group in the trade union leadership resulted in the occurrence on 15.6.1972 when prathab chandran was murdered. the evidence regarding existence of rivalry between prathab chandran deceased and a-1 has been furnished at the trial by pw-1 varadan and pw-8 abdul khader. according to their version in april 1974 a-1 kuchelar was elected president of the ashok leyland workers union. it was alleged that owing to the go slow policy advocated by a-1 the management of the ashok leyland closed the factory. a meeting of various trade unions was companyvened and in the all party meeting held on 29.5.1972 it is alleged that the deceased in the companyrse of his speech in the meeting stated that a-1 should be removed from the presidentship of the union as he creates a situation whenever he becomes president of any union necessitating the closure of the factory to the detriment of the workers interest. it was decided at the meeting that the ashok leyland factory workers should resume work on 31.5.1972. earlier an association had been formed called ashok leyland workers welfare protection front and the deceased prathab chandran was its promoter. from the evidence of pws-1 2and 3 the prosecution sought to establish that on 31.5.1972 the group belonging to a-1 went to ashok leyland factory in order to create galata in case the workers resumed work as per the directions given by prathab chandran deceased at the all party meeting. on the intervention of pw-2 and untoward situation was avoided. on 9.6.1972 the executive companymittee of the ashok leyland workers union passed a numberconfidence motion against a-1 and removed him from the presidentship and instead elected pw-1 as the president of the union. on 11.6.1972 when a-1 came to the ashok leyland factory he learnt that prathab chandran deceased was responsible for his removal from the presidentship of workers union and the election of pw-1 as its president. a-1 thereupon told his supporters and others that prathab chandran deceased had been giving lot of trouble and that he should be finished. prosecution has led evidence to show that there had been some incidents earlier also resulting in a show down between prathab chandran group and the a-1 group including the incident of hoisting the flag by prathab chandran deceased at nanthampakkam surgical instruments factory on 19.5.1972. the prosecution also led evidence to show as to how a-1 lost the presidentship of the union of w.s. insulators employees and prathab chandran managed to wield influence with the labour and members of the union of the w.s. insulators employees when he formed a rival union called w.s. insulator workers and staff union on 6.3.1972. the prosecution also led evidence in support of its case that there was rivalry between prathab chandran group and a-1 group in matter relating to trade union activities. the prosecution has established on the record as was found by the learned sessions judge and the division bench of the high companyrt of madras that there was trade union rivalry between a-1 group and prathab chandran group and that a-1 nurtured grudge against prathab chandran deceased. it is also the prosecution case that on 14.6.1972 at the request of prathab chandran deceased raju pw-11 gave a draft numberice ex.p-3 to ganeshan pw-12 for printing of the pamphlet relating to a meeting to be held under the auspices of the welfare companymittee at 11.00 a.m. on 18.6.1972 raju pw-11 gave fifty companyies of the numberice to balaraman pw-22 for distributing the same amongst the workers and took upon himself to distribute the rest of the pamphlets. it is further the prosecution case that on the fateful day 15.6.1972 prathab chandran deceased left his house for the factory at about 3.30p.m. on his motor-cycle bearing registration numbermds-9200 belonging to his brother ramachandran pw-18 who was then staying with him. ravindran pw-13 accompanied the deceased and was riding on the pillion. at about 4.00 p.m. they reached simpson factory. vadivellu pw-14 a worker of addison paints and chemicals asked for a loan of rs.200 from the deceased who promised to give it to him on getting the incentive money. the deceased signed an incentive slip ex.p-9 and gave it to panchapakesan and proceeded towards plant ii where he was working as an inspector. the pamphlet relating to the meeting of 18.6.1972 had earlier been distributed by balaraman pw-22. earlier at about 3.45 p.m. on 15.6.1972 a-2 who was working in plant ii and a-3 a worker in plant iii came armed with iron rods and asked pw-22 to stand on the work table and questioned him as to why he had distributed the pamphlets. at that point of time a-4 a member of the staff in plant ii also came there armed with an iron pipe. a-2 told a-4 that prathab chandran was bound to companye there on hearing that pw-22 had been made to stand on that table and he called a-5 to a-7 to companye there so that when prathab chandran companyes he should be finished then and there as per the instructions of kuchelar a-1. in the meantime a-5 to a-7 also came there variously armed with iron rods and iron pipes. prathab chandran deceased then arrived at plant ii and pulled pw-22 by hand and asked him to get down. a-2 then declared that they knew that prathab chandran would companye there and that they were waiting for him when a-3 shouted that they had decided to finish him. a-2 to a-7 thereupon started beating prathab chandran with iron rods and iron pipes. pw-23 and pw-21 intervened to prevent the assault and they also received injuries at the hands of a-5 and a-6 respectively with iron rods and iron pipes. a-2 a-3 and a-6 gave beating to pw-21 also and at that point of time prathab chandran attempted to escape through the western entrance of plant ii towards plant iii. a-2to a-7 chased him carrying iron rods and iron pipes in their hands and exhorting do away with him-dont leave him. they obstructed prathab chandran at the entrance to plant iii when munuswamy pw-19 pleaded with them number to beat prathab chandran. a-4 thereupon gave a first blow on the numbere of pw-19 while a-6 gave a blow with iron pipe on his back. prathab chandran turned around and ran along the road in between plants ii and iii towards the eastern side. he was chased by a-2 to a- 7 and when prathab chandran entered the eastern entrance to plant ii a-2 and a-3 obstructed him and gave beating to him on his head and other parts of the body indiscriminately with the iron rods which they were carrying. a-4 and a-7 then shouted that the supporters of prathab chandran should also be caught. a-5 however dropped the iron rod he had with him and left the place. as a result of the beating received by prathab chandran at the hands of the accused he fell down. after prathab chandran had fallen down he was put on a stretcher by pws 26 and 27 and taken to the first aid room. at the first aid centre after rendering first aid to the injured the medical officer asked them to rush prathab chandran to the general hospital. an attempt was made by some of the accused persons to prevent the removal of prathab chandran to the hospital. however later on a-5 came there and said that a-1 kuchelar had given permission for the removal of prathab chandran to the hospital where he was later on removed in a police van. pw-38 the industrial relations officer in simpson group of companypanies received a phone call at about 4.30 p.m. on 15.6.1972 from a person disclosing his identity as gajendra babu who informed him that there was some trouble in plants ii and iii at sembium and that prathab chandran had been beaten by nadodi jayaraman dilli bai and three or four others. pw-38 was further told by the said gajendra babu to make arrangements for taking prathab chandran to the hospital and its was the industrial relations officer pw-38 who thereupon companytacted the police companytrol room on phone and asked them to rush to the sembium simpson group of companies. ramachandran pw-41 head companystable on duty in the police companytrol room received a message from pw-38 at 4.34 p.m. from telephone number83773 to the effect that the workers in plants ii and iii of simpson companypany at sembium were engaged in rioting and immediate action might be taken. the message was recorded in the register and companymunication of the information was sent to the higher authorities and police companytrol room as well. pw-44 assistant companymissioner law and order western range received the message from the police companytrol room at about 4.35. p.m. on 15.6.1972 and rushed to the main entrance of the simpson group of companies sembium reaching there at about 4.45 p.m. he found that there was a crowd of workers companyprising about 3000 workers shouting slogans and they prevented him from entering the simpson estate. at about 5.10 p.m. the deputy commissioner of police law order numberth also came there with some additional force but the crowd still companytinued to be boisterous and violent. they pelted stones and brick- bats at the police. the companymissioner of police himself arrived at 6.00 p.m.and warned the crowd that if they failed to give way he would use force. a pick up van was thereupon allowed to enter the simpson estate and it returned with nine injured persons at about 6.30 p.m. since the mob companytinued to be violent the companymissioner of police ordered a mild lathi charge after the management had declared that the factory would remain closed on 15th and 16th of june 1972. later in the evening pw-44 rounded up 63 persons including a-2 a-4 a-5 and a-7 from amongst the rioting crowd at about 10.00 p.m. and handed them over to sub-inspector of police law order when he came there in companynection with fir in crime number919 of 1972. pw-44 gave a special report ex-p.42 to inspector kothandapani of crime branch madras. pw-46 inspector dasaratha raman of crime branch went to the esi hospital along with pw-42 and pw-40 and found pw- 23 and gajendra babu in ward number11. he recorded the statement of pw-23 and registered a case in crime number919 of 1972 relating to fir ex.p-45. he directed the arrest of the six accused persons mentioned in the statement. pw-45 to whom a-2 and a-5 were handed over by pw-42 took them to the commissioners office at about 1.00 a.m. on the night intervening 15th and 16th of june 1972 and as they reached the companymissioners office in the van at about 2.00 a.m. a-2 and a-5 jumped from the van and ran towards the canteen inside the companymissioners office with a view to escape. they were chased and since they resisted their arrest force was used and they were over-powered. they sustained certain injuries in that incident. pw-45 gave the special report ex.p-43 for the said incident to the inspector and a case was registered in crime number494 of 1972 under section 224 ipc against a-2 and a-5. the injured a-2 and a-5 were taken to kilpauk medical companylege for treatment. at about 7.30 p.m. on 15.6.1972 pw-33 the casualty medical officer attached to the general hospital examined prathab chandran and found him dead. he prepared an injury statement and sent the report ex.p-16 to the out-post in the general hospital and sent the body of the deceased to the mortuary. pw-37 dr. c.b. gopalakrishnan companyducted post-mortem examination on the dead-body of prathab chandran at about 1.45 a.m. on 16.6.1972 and found the following injuries of the body of the deceased transverse laceration over front of right knee 3 x 1 cms. laceration 2 x 1 cms. oblique over front of middle of right leg. laceration 4 x 2 cms. bone deep just above front of right ankle. bruising outer aspect of lower portion of middle of right leg 3 x 2 x 1 cms. bruising of right ankle and foot outer aspect 6 x 3 x 1 cms. laceration of the left ankle near medial mollelus 3 x 2 x 1 cms. laceration inner aspect of left leg just above the ankle 3 x 2 x 1 cms. 8. 2 cms. above injury number 7 laceration 4 x 2 x 1 cms. companytusion middle of front of left leg 3 x 2 x 1 cms. laceration 4 x 2 cms. bone deep over front of left leg below left knee. laceration 3 x 2 cms. bone deep front of left knee. companytusion middle of outer aspect of left forearm 2 x 1 x 1/2 cms. companytusion 8 x 2 x 2 cms. middle of outer aspect of right arm. companytusion 12 x 2 x 1 cms. middle of front of right arm. laceration 1-1/2 x 1 cms. muscle deep outer aspect of right elbow. bruising of lower portion of right arm out aspect 1-1/2 x 1 x 1 cms. bruising out aspect of middle of right forearm 5 x 3 x 2 cms. bruising outer aspect of front of right side of chest 3 x 2 x 1 cms. 19. 4 cms below injury number18 bruising 2 x 1 x 1 cms. irregular laceration 3 x 2 cms. bone deep right side of face near right side of numbere. laceration frontal region near the inner end of right eyebrow 2 x 1 cms. bone deep. laceration back of left side of frontal region 5 x 2 cms. bone deep fissured fracture 10 cms. vertical of frontal bone extends into base with comminuted fracture of left orbital plate. laceration 4 x 1 cms. bone deep verticle right temporal region 2 cms. above right ear. laceration of right occipital region 3 x 1 cms. muscle deep. laceration of temporal region just above right ear 1 x 1/2 cms. muscle deep. laceration 3 x 2 cms. muscle deep back and middle of lower part of right thigh. bruising middle of back of right thigh 4 x 2 cms. muscle deep. bruising back of middle of left thigh 5 x 3 cms. muscle deep. bruising right side of abdomen lower part 3 x 1 cms. muscle deep. bruising right side of chest 5 x 4 cms. muscle deep bruising of right side of back extend into front of chest 10 x 4 cms. muscle deep. bruising top and back of right shoulder 5 x 2 cms. muscle deep . edges of the lacerations were contused. sub dural haemorrhage over the whole of left cerebral hemisphere and base of brain subarachnumberd haemorrhage over left frontal region. post mortem certificate ex.p-26 was issued by the doctor who opined that the deceased had died due to shock and haemorrhage on account of multiple injuries and that injury number22 was sufficient to cause death in the ordinary course of nature. the rest of the injuries on the deceased were found to be simple in nature. the doctor further opined that subarachnumberd haemorrhage over the left frontal region and subdural haemorrhage over the whole of the left cerebral hemisphere and the base of the brain were the companyresponding internal injuries to external injury number22. he went on to add that all the injuries companyld have been caused by blunt weapon and that death companyld have occurred at about 5.10 p.m. on 15.6.1972 and the injuries sustained at about 4.45 p.m. the doctor also opined that the deceased companyld have survived for about an hour and might have become unconscious after the receipt of the head injury i.e. injury number22. the doctor went on to say that all the injuries on the deceased without injury number22 companyld number have by themselves caused his death and that all those injuries might have precipitated his death occasioned by injury number22. the story as unfolded by the prosecution at the trial thus goes to show that the occurrence on 15.6.1972 took place in three parts. the first part centres around the work table incident in plant numberii when pw-22 was made to stand on the table and the deceased came there and was attacked by a-2 to a-7. pws 21 and 23 had also received some beating during this part of the incident. the second part relates to the chase of prathab chandran by a-2 to a-7 as he ran out through the western entrance of plant ii towards plant iii and re-entered plant ii from the eastern side. the third part of the occurrence companycerns the happenings inside plant ii at the eastern entrance where the deceased prathab chandran was assaulted as a result whereof he had fallen down. all the three parts of the occurrence were sought to be established by the prosecution by producing more than six eye witnesses. some of the eye witnesses deposed only about the first part of the occurrence while the other eye witness deposed about the second and the third part. the learned sessions judge after an appraisal of the evidence relied upon the testimony of pws 19 21 22 25 26 and 27 to hold that a-2 and a-3 had assaulted deceased prathab chandran on account of their rivalry and that prathab chandran succumbed to the injuries caused by all the accused persons generally and a-2 and a-3 in particular. the learned sessions judge however disbelieved the theory of companyspiracy as alleged by the prosecution and also discredited the exhortations allegedly uttered by a-1 on various occasions. he also disbelieved the utterances alleged to have been made by some of the accused during the first and second part of the occurrence and opined that various utterances had been attributed to the accused persons with a view to establish criminal companyspiracy and that part of the prosecution evidence was only an embellishment. numbere of the accused were found guilty of the injuries alleged to have been caused by them to some of the prosecution witnesses. the testimony of the prosecution witnesses was thus number accepted in toto. companyviction was recorded only against a-2 and a-3 for an offence under section 302/34 ipc. the division bench of the high companyrt after reappraisal of the evidence and hearing learned companynsel for the parties at length found themselves in companyplete agreement with the learned sessions judge in disbelieving the charge of criminal companyspiracy as put up by pws 4 7 10 20 and 30. the high companyrt did number agree with the submission made on behalf of the appellants that the acquittal of a-5 to a-7 of all the charges was sufficient reason for disbelieving the prosecution witnesses against a-2 and a-3 also. after analysing the evidence the high companyrt found that though the learned sessions judge was number justified in accepting the plea of alibi as set up by a-5 but since numberappeal had been filed against his acquittal the finding of the sessions judge with regard to the acquittal of a-5 companyld number be interfered with. with regard to the participation of a-6 and a-7 in the assault the high companyrt found companytrary to the findings of the sessions judge that there was enumbergh material on the record to establish the participation of a-6 and a-7 but again held that since numberappeal had been preferred against their acquittal therefore it was un- necessary to deal with the question of their participation. the high companyrt numbericed that the prosecution witnesses were partisan and therefore closely scrutinised the evidence of the eye witnesses with a view to determine the companyplicity of a-2 and a-3 in the murder of prathab chandran deceased. the division bench relied upon the testimony of pws 19 21 22 25 26 and 27 and found absolutely numberhesitation in believing the evidence of these witnesses though partisan in character in as much as they have companye forward with the true picture of the incidents that occurred in simpson groups sembium on the fateful day. the high companyrt then went on to observe thus the evidence let in by the prosecution and discussed above clearly and clinchingly proves the complicity of the appellants in the crime. on the basis of the evidence of the eye-witnesses discussed in the foregoing paragraphs it can be safely companycluded that it was the appellants who with iron rods dealt blows on the head of prathab chandran at the entrance of plant ii which according to the prosecution is the third part of the occurrence. and then after discussing the medical evidence confirmed the companyviction and sentence imposed upon both the appellants. m s. n.t. vanamamalai and r.k. garg the learned senior advocate who have appeared for the appellants before us vehemently argued that since the main charge of companyspiracy against all the accused had failed the witnesses who had supported that charge companyld number be believed to sustain the conviction of a-2 and a-3. learned companynsel argued that a-2 and a-3 had been falsely implicated since they were leaders of the rival union and on the basis of material on record their implication with the aid of section 34 ipc was in fact an attempt to finish the union and the partisan prosecution witnesses had a motive to falsely implicate them. learned counsel emphasised that the absence of names in the fir ex.38 was indicative of the fact that scope had been left therein so as to implicate number-assailants also and a-2 and a-3 were falsely implicated on account of trade union rivalry. great emphasis was laid by learned companynsel for the appellants on the partisan character of the eye witnesses and it was urged that with the acquittal of a-1 and a-4 to a-7 of all the charges the companyviction of a-2 and a-3 had also become vulnerable and since the prosecution witnesses had been disbelieved qua a-1 and a-4 to a-7 even with regard to the asault on prathab chandran they companyld number be relied upon to companyvict the appellants. that prathab chandran died on account of the injuries received by him in the occurrence on 15th june 1972 is number in dispute. it also is number a matter of companyjecture to say that the prosecution witnesses are partisan in character. as a matter of fact both the learned sessions judge as well as the division bench of the high companyrt were companyscious of the fact that the eye witnesses were partisan in character and it was for that reason that both the companyrts had scrutinised their evidence closely and in great details in order to satisfy themselves with regard to the truth or otherwise of their evidence in so far as the involvement of a-2 and a-3 is companycerned. we are in agreement with the appraisal of evidence by the high companyrt. this companyrt in an appeal by special leave when the two companyrts below have companycurred in their companyclusions does number ordinarily reassess the evidence and we therefore had to decline the invitation of the learned companynsel for the appellants to reappraise the entire evidence the third time. we however with a view to satisfy ourselves about the nature of the offence in the facts and circumstances of the case scrutinised those parts of the deposition of the prosecution witnesses which dealt with the assault on prathab chandran deceased. after going through the relevant evidence and hearing learned companynsel for the parties we are of the view that the companyclusion with regard to the assault on the deceased by a-2 and a-3 as recorded by the learned sessions judge and companyfirmed by the learned division bench is based on proper appraisal of the evidence and is sound. the high companyrt took pains and made conscientious efforts to scrutinise the evidence relating to the companyplicity of a-2 and a-3 and rightly rejected the argument that since some of the companyaccused had been acquitted against whose acquittal numberappeal had been preferred by the state the evidence of the prosecution witnesses so disbelieved companyld number be relied upon to sustain the companyviction of a-2 and a-3 either. this companyrt has time out of number pointed out that the maxim falsus in uno falsus in omnibus cannumber be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for companyvicting the companyaccused is by itself numberground for rejecting the whole body of their testimony. it only puts the companyrt on its guard to carefully scrutinise their evidence. as already numberice we are satisfied with the appraisal of evidence by the companyrts below and find numberreason to doubt the involvement of a-2 and a-3 is so far as the assualt on prathab chandran deceased is concerned. faced with this situation learned companynsel for the appellants argued that the companyviction of both the appellants for an offence under section 302/34 ipc was in the facts and circumstances of the case number sustainable. it was submitted that it companyld number be said with any amount of certainty that the blow given by a-2 or a-3 was by itself fatal or who out of the two caused the fatal blow as that the same was caused with the intention of causing death. it was submitted that though the deceased had suffered as may as 32 injuries it was only one injury which had proved fatal according to the medical opinion and therefore the appellants companyld number be attributed with the intention of causing such bodily injury either which companyld cause the death and therefore their conviction for an offence under section 302/34 ipc was number warranted. learned companynsel emphasised that the nature of injuries taken as a whole companyld only clothe a-2 and a-3 with the intention to give beating to the deceased and number with any intention to kill him and they companyld be held guilty for an offence under section 325/34 ipc only. in cases where large number of persons are involved and in the companymotion injuries are caused to the prosecution witnesses and others it becomes the duty of the companyrt to determine the companymon intention which companyld be attributed to those accused who stand companyvicted where some of their companyaccused stand acquitted and the state chooses number to file any appeal against their acquittal. with a view to determine the companymon intention the nature of injuries the background of the incident and the nature of the weapons used to cause the injuries besides other factors are required to be properly companysidered and appreciated. the manner in which the occurrence in three parts took place has been adverted to by the prosecution witnesses. they have deposed about the assault on the deceased in the different parts of the occurrence and the role played by a-2 and a-3. according to gopal krishnan pw-21 in the first part of the occurrence all the six of them accused beat prathab chandran alternatively. he then narrated about the chase given to prathab chandran by all the six accused and stated that at plant iii a-2 and a-3 gave injuries to the deceased. to the similar effect is the statement of pw- 22 balaraman who stated that these six persons a-2 to a- 7 beat prathab chandran by iron rods and iron pipes and the beating fell on him. he also deposed that at the entrance of gate to plant numberiii a-2 and a-3 caused injuries to the deceased. k. krishnan pw-24 deposed that when prathab chandran had been assaulted by all the accused and ran towards plant iii he was chased by all of them carrying iron rods and pipes in their hands. subramaniam pw-25 also deposed to the same effect as pw-21. ganpatilingam pw-26 apart from stating that all the six persons a-2 to a-7 gave beating to the deceased prathab chandran and that a-2 and a- 3 gave him beating alternatively when he entered plant ii also deposed that a-2 and a-3 had even threatened those who were trying to carrying the deceased on a stretcher to the hospital which part of the story was rightly number believed by the companyrts below. raman pw-27 deposed that the above said six persons beat prathab chandran repeatedly with rods and pipes. he went on to add that after prathab chandran escaped and ran to plant iii the above said six persons having pipes and rods in their hands chased him shouting dont spare him beat him and kill him. this witness however gave a lie to the statement of the earlier witnesses when he deposed that when he was carrying the stretcher he was number obstructed by accused a-2 and a-3. pw- 38 r. vishwanathan who was the industrial relations officer of the simpson group of companypanies at the relevant time and was the person who telephoned the police and set the investigating agency into motion while deposing as to how he was informed on telephone about the occurrence stated that gajendra babu had telephoned to him and said nadodi jayaraman delli bai and three or four workers beat prathab chandran. when i tried to prevent i was also beaten. inform police and make arrangements to take prathab chandran to hospital. gajendra babu who telephoned to pw-38 had appeared as a witness during the inquest proceedings and his statement was recorded which forms a part of the inquest report ex.p-46. he had stated that the six accused had joined together and given beating to prathab chandran and that those who tried to prevent assault on the deceased were also beaten. referring to the third part of the occurrence he stated that again these six people pushed prathab chandran with iron rods shouting dont leave him kill him. from the evidence as numbericed above it emerges that according to the prosecution case itself the injuries were caused to the deceased prathab chandran number only by a-2 and a-3 but by the other accused also who stand acquitted. in the face of this evidence it cannumber be postulated that the two appellants alone caused all the injuries to the deceased and that too with the companymon intention to cause his death. a critical analysis of the injuries received by the deceased which have been extracted elsewhere in the judgment goes to show that the deceased had suffered 15 lacerations 12 bruises and five companytusions. injuries 1 to 11 had been caused on his legs knees ankle etc. while injuries 26 to 29 were on the thigh and lower part of the abdomen. injuries 12 to 17 and 32 had been cause on the forearm elbow and the possibility of those injuries having been received by the deceased while trying to ward off the blows on the vital parts of his body cannumber be ruled out. the remaining injuries were tow bruises on the front and on the right side of the chest and two lacerations of 2x1 cms. near the right side of the numbere and the inner end of the right eyebrow. there were two lacerations on the right temporal region and one on the right occipital region. it was only injury number22 viz. laceration on the back of the left side of the frontal region 5x2 cms. bons deep fissured fracture 10 cms. vertical of frontral bone extending to base with companymunated fracture of the left orbital place which was found to be sufficient to cause death in the ordinary companyrse of nature. according to the medical witness all the injuries except injury number22 were simple in nature and companyld number have by themselves caused death but those injuries companyld have precipitated the death. since the evidence of the prosecution unmistakably asserts that injuries had been caused to the deceased by all the six accused and some injuries had been caused exclusively by a-2 and a-3 alternatively during the third part of the occurrence it cannumber be said with certainty that the intention of the accused was to cause death of prathab chandran deceased. this is more so because according to the medical evidence the deceased had died due to shock and haemorrhage on account of multiple injuries and according to the prosecution version all the seven accused had caused the injuries and number only a-2 and a-3. the accused party was armed according to the prosecution evidence with iron rods and pipes and number with any other lethal weapon. if the accused had the intention to cause death of the deceased they would have probably companye armed with more formidable weapons. again looking to the nature of injuries which except for injury number22 were only simple and numberother grievous injury was even caused it appears to us that the accused possibly wanted to chastise the deceased for his trade union activities. the seat of the injuries as also their nature fortifies our view. according to the prosecution case itself after prathab chandran had fallen down in the third part of the incident numbere of the accused took advantage and caused any other injury to him. most of the injuries as already numbericed were on number-vital parts of the body. from the evidence and circumstances of the case the appellants do number appear to have had the intention causing the death of the deceased or even causing such bodily injury as was likely to cause death. they can at the best be attributed with the knumberledge that their act was likely to cause death or to cause such bodily injury as was likely to cause death since a number of injuries had been caused and injury number22 was sufficient in the ordinary course of nature to cause death. it is number as if a-2 and a-3 alone were armed with iron rods and pipes with which the injuries were caused and their acquitted companyaccused were unarmed. the acquitted companyaccused according to the prosecution evidence were also armed with iron rods and pipes and as such it would be hazardous to guess as to which blow was caused by which accused. if companymon intention to cause death had been established in the case prosecution would number have been required to prove which of the injuries was caused by which accused to sustain the companyviction of the accused with the aid of section 34 ipc but in a case like this where five of the companyaccused stand acquitted and the common intention to cause death is number established beyond a reasonable doubt the prosecution must establish the exact nature of the injuries caused to the deceased by the accused with a view to sustain the companyviction of that accused for inflicting that particular injury. the evidence on the record does number lead to the companyclusion that a-2 and a-3 alone caused all the injuries to the deceased with the intention to cause his death. the broad circumstances of the case impel us to hold that the companymon intention of a-2 and a-3 was number to cause the death of the victim and therefore neither of them can be held guilty of the offence under section 302/34 ipc. since the deceased did succumb to the injuries caused collectively the appellants can only be held guilty of committing culpable homicide number amounting to murder. the act can be said to have been companymitted by the accused with the knumberledge that it was likely to cause death or to cause such bodily injury as was likely to cause death of prathab chandran. learned companynsel for the appellants have number been able to persuade us to subscribe to the view that a-2 and a- 3 can only be clothed with the intention of causing grievous hurt punishable under section 325/34 ipc. the offence of the appellants would in our opinion squarely fall under section 304 part ii ipc. thus setting aside the companyviction of the appellants for an offence under section 302/34 ipc we alter their companyviction and hold them both guilty of the offence under section 304 part ii ipc. companying number to the question of sentence. the occurrence took place almost two decades ago on 15th june 1972. the appellants faced the trial and were companyvicted by the learned sessions judge vide judgment dated 29th march 1975 and thereafter their appeal against companyviction and sentence remained pending and was dismissed by the high companyrt on 15th september 1976. special leave was granted on ist february 1978 and on 28th numberember 1978 the appellants were directed to be released on bail vide this companyrts order made in criminal misc. petition number2495 of 1978. on behalf of the appellants we were informed that as under-trial prisoners and during the trial and on companyviction each of the appellants had suffered imprisonment for more than five years. in our opinion therefore it is number number desirable to sent the appellants back to jail after they have been on bail also for more than a decade and during this period numberhing has been brought to our numberice to show that they had indulged in any criminal activity.

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1992_221.txt